Thông tư 168/1998/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF DECREE No.84/1998/ND-CHI PHÍ OF OCTOBER 12, 1998 OF THE GOVERNMENT DETAILING THE IMPLEMENTATION OF THE SPECIAL CONSUMPTION TAX (SCT) LAW

Pursuant to Special Consumption Tax Law No.05/1998/QH10 of May20, 1998;
Pursuant to Decree No.84/1998/ND-CP of October 12, 1998 of the Government detailing the implementation of the Special Consumption Tax Law;
The Ministry of Finance hereby provides the implementation guidance as follows:

A. SCOPE OF APPLICATION OF THE S.C.T. LAW

I. TAXABLE OBJECTS, SCT PAYERS

1. Taxable objects:

Objects liable to SCT prescribed in Article 1 of Decree No.84/1998/ND-CP of the Government shall be the following goods and services, except for cases which are not liable to SCT defined in Section II, Part A, this Circular.

1.1. Goods:

a/ Cigarettes, cigars;

b/ Alcohol;

c/ Beer;

d/ Cars of under 24 seats;

e/ Petrol of various kinds, naphtha, reformade component and other components for mixture of petrol;

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

g/ Playing cards;

h/ Votive paper, votive paper offerings.

1.2. Services:

a/ Business in dancing-hall, massage parlor, karaoke bar;

b/ Casino, jackpot;

c/ Business in horse race, car race betting tickets;

d/ Business in golf: selling membership cards, golf playing tickets.

2. S CT payers

SCT payers defined in Article 2, Decree No.84/1998/ND-CP of the Government are organizations and individuals (collectively referred to as establishments) engaged in the production and/or import of goods and the provision of services, which are liable to SCT.

- Organizations engaged in the production and/or import of goods and/or service provision include:

+ State enterprises; economic units of political organizations; socio-economic organizations, social organizations, socio-professional organizations, people’s armed forces units and other non-business organizations and units; cooperatives;

+ Private enterprises, limited liability companies, joint-stock companies;

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

- Individuals engaged in goods production and/or import as well as service provision include individual importers, independent producers and business people, households, individuals cooperating with one another in production and/or business without formulating business legal persons.

3. a/ Establishments producing goods liable to SCT shall have to pay SCT but not have to pay value added tax (VAT) on such goods at the production stage.

Example 1 : Company A produces cigarettes. When selling the cigarettes it has produced, the company has to declare and pay SCT and shall not have to pay VAT on cigarette sale turnover already imposed with SCT.

b/ Establishments importing goods liable to SCT shall have to pay SCT on such goods at the importation stage, and shall not have to pay VAT on the imported goods already imposed with SCT.

Example 2: Company B imports liquors; when importing them, it shall have to declare and pay SCT and not have to pay VAT; when selling such liquors, the Company shall have to declare and pay VAT.

c/ Establishments dealing in services liable to SCT shall have to pay SCT on such services when they are provided and not have to pay VAT on turnover from services already declared for SCT payment.

II. CASES WHERE GOODS ARE NOT LIABLE TO SCT

According to the provisions of Article 3 of Decree No.84/1998/ND-CP of the Government, goods defined in Point 1.1, Section I, Part A of this Circular shall not be liable to SCT in the following cases where:

1. Goods are exported directly by production and/or processing establishments, including goods sold or processed for export processing zones and goods brought overseas for trade fairs and/or expositions. The establishments shall have to produce to the tax authorities papers and dossiers evidencing that such goods are actually exported. Concretely:

+ Sale contracts or contracts on goods processing for foreign countries.

+ Sale invoice of the volume of goods exported or returned to the processee.

+ Export goods declarations with customs authority’s certification that the goods have been actually exported.

If establishments producing goods liable to SCT temporarily export them for re-import under the temporary export-reimport permits during the period where import tax and/or export tax are not paid yet according to the prescribed regime, they, when re- importing such goods, shall not have to pay SCT which must, however, be paid when such goods are sold by the production establishments.

2. Production establishments which sell their goods for export or entrust their goods to exporting establishments for export under economic contracts must have the following papers:

+ The contract for entrusted export or the contract for sale of goods to the exporting establishment for export.

+ Invoice of goods sale or delivery in accordance with the signed economic contract.

Monthly or periodically, when making tax payment declaration, the production establishment having goods sold or entrusted for export shall have to make the declaration of the whole volume of goods sold or entrusted for export together with the name and address of the exporting establishment, to be submitted together with the SCT declaration to the tax authority that directly manages it. In cases where the entrusted-export goods have been actually exported, the entrusted-export contract liquidation and papers evidencing that the goods have been actually exported are required.

The tax authority that directly manages the production establishment shall have to examine the declaration of goods sold for export and notify the tax authority that manages the exporting establishment of the name of the unit buying goods for export, the volume and value of goods bought by the establishment for export, and at the same time check the dossiers and certify the volume of goods sold for export, which are not liable to SCT.

3. Goods imported in the following cases :

a/ Humanitarian aid and/or non-refundable aid goods.

b/ Presents given by foreign organizations and individuals to State bodies, political organizations, socio-political organizations, social organizations, socio-professional organizations and people�s armed forces units. The presents shall be fixed at the levels prescribed by the Government or the Ministry of Finance.

c/ Belongings of foreign organizations and individuals that enjoy diplomatic immunities prescribed by the Vietnamese Government in conformity with the international treaties which Vietnam has signed or acceded to.

d/ Personal effects within the duty-fee luggage limits prescribed for Vietnamese and foreign individuals when they are on exit or entry through Vietnamese border-gates.

4. Goods transported across border-gates, on transit, or through Vietnam in the following forms:

- Goods transported directly from exporting countries to importing countries without passing through Vietnam border-gates;

- Goods transported from exporting countries to importing countries via Vietnamese border-gates but without filling procedures for import into and export from Vietnam;

- Goods transported from exporting countries to importing countries through Vietnamese border-gates and put into bonded warehouses, but without filling procedures for import into and export out of Vietnam;

- Goods on transit, transported through Vietnamese border-gate and/or borders on the basis of agreements signed between the two Governments, branches or localities under the Prime Minister’s permission.

5. Goods temporarily imported for re-export, which, if being actually exported during the period of non- payment of import tax according to the prescribed regime, shall not be subject to the payment of SCT corresponding to the volume of actually exported goods.

6. Goods temporarily imported for trade fairs and/or expositions, if they are actually re-exported during the import tax grace period according to the prescribed regime.

If after the trade fairs and/or expositions, organizations and individuals fail to re-export their temporarily imported goods, they shall have to declare and pay SCT; if any organizations and/or individuals are detected having failed to do so, they, besides having to pay SCT arrears, shall be fined according to the provisions of law.

7. Goods imported from abroad into export-processing zones and/or export-processing enterprises.

The procedures, dossiers, order and competence for non-collection of SCT in the cases defined in Points 3, 4, 5, 6 and 7 above shall comply with the regulations on procedures, dossiers, order and competence for non- collection or exemption of import tax for such cases according to the Law on Export Tax and Import Tax.

8. Goods imported for sale at duty-free shops in sea-ports and international airports to persons entitled to buy duty-free goods according to the Government�s stipulations.

The management of goods, the tax-exemption consideration and the SCT settlement in this case shall comply with regulations as prescribed for import tax exemption consideration.

For import goods not liable to SCT as defined in Points 3, 4, 5, 6 and 7 above, if their import purposes change like: aid goods are used for purposes outside their programs and/or projects, or goods imported under privilege status for re-export but have not been re- exported, within 03 days after their import purposes alter from the prescribed ones, the import goods owners shall have to declare it with the import tax-collecting authority in localities where the procedures for the import of their goods lots were carried out so that the latter fill the procedures for the full collection of SCT. The collection of SCT in this case shall comply with regulations as prescribed for the collection of import tax.

B. BASES FOR TAX CALCULATION AND TAX RATES

The bases for SCT calculation a prescribed in Article 4, Decree No.84/1998/ND-CP of the Government shall be the prices of goods and/or services liable to SCT and the SCT rates.

I. SCT CALCULATION PRICES

Under the provisions of Article 5, Decree No.84/1998/ND-CP of the Government, the prices for calculation of SCT on goods and services are determined as follows:

1. For home-made goods: The SCT calculation price shall be the production establishments’ selling prices without SCT, which are concretely determined as follows:

The production establishment’s selling price is the one written on its sale invoice.

Where a production establishment sells goods through its branches, stores and/or affiliates, the selling prices used as basis for SCT calculation shall be the selling prices applied by such branches, stores and/or affiliates; where a production establishment sells goods through agents which sell goods at the prices set by the former for commissions, the selling prices used as basis for SCT calculation shall be the agents’ selling prices with commissions.

Example: A brewery’s selling price is VND3,000/litre of draught-beer, the tax rate for draught-beer is 50%, so:

The payable SCT = VND 2,000/litre x 50% = VND ,000/litre

- For foreign-label cigarettes produced by Vietnamese factories and companies under the Vietnam Cigarette Coorporation and handed over to Vietnam-based branches of foreign cigarette firms:

The selling prices that serve as basis for SCT calculation shall be the prices of cigarettes delivered by Vietnamese companies and factories to foreign cigarettes firms’ branches for sale in Vietnam, which however, must not be 10% lower than the average selling prices of such foreign branches. In cases where the manufacturing factories and companies have failed to determine the reasonable tax calculation prices, the tax authority shall fix the tax calculation prices, based on the foreign branches’ selling prices minus (-) 10%.

- For home-made bottled liquors. The selling prices that serve as basis for determining SCT calculation price shall not cover the bottle. In cases where a production establishment sells liquors at prices written on sale invoices that cover the bottle, the establishment shall have to separate the liquor sales turnover from the cost of bottles, based on the sales turnover written on the sale invoice, for the calculation of payable SCT. The bottle value to be deducted from the selling prices when calculating the SCT shall be the purchase prices written in the receipts; for the bottles produced by the establishment itself, it is the cost of the production thereof, which is, however, equal to the purchase price of products of the same kind at the most.

- For home-made bottled beer: If a production establishment sells bottled beer by mode of bottle exchange and recovery, the selling price used as basis for SCT calculation shall be the beer selling prices which do not cover the bottle. When making sale invoices, the establishment shall have to note down the actual sale price. Where the establishment sells beer together with the bottle, the SCT shall be calculated according to the selling prices that cover the bottle.

Example: The selling price of a case of Hanoi beer by mode of bottle exchange and recovery is VND 120,000 per case, the SCT calculated according to the selling price of VND 20,000 per case shall be:

If the establishment sells beer without exchanging

and recovering the bottles at the price of VND 68,000 per case (24 bottles), the payable SCT shall be:

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

SCT calculation price = Import tax calculation price + import tax

The import tax calculation price is determined according to the regulations on the import tax calculation price. In cases where the import goods are entitled to import tax exemption or reduction, the import tax determined in the SCT calculation price shall be the remainder of the payable import tax amount.

3. For processed goods, it is the tax calculation price of goods of the same or equivalent type at the time of goods delivery. In cases where such price is not available, the tax authority shall base itself on the selling price of such products on the market or the selling price set for such goods by the processee to determine the tax calculation price and inform the concerned establishment thereof for implementation.

4. For goods sold by mode of installment payment, it is the non-SCT selling price of such goods sold by mode of lump-sum cash payment, excluding interests on installments.

5. The tax calculation price for services liable to SCT is the service prices without SCT, which is determined as follows:

Example: The dancing hall business turnover in the period is VND 2,000,000

The payable SCT = VND 0,000,000 x 20% = VND2,000,000

The service price serving as basis for determining the prices for calculation of SCT on a number of services is stipulated as follows:

- For dancing hall business, it is the entrance ticket price. In cases where there is no admission ticket, it shall be calculated on the total turnover of the dancing hall activities; for massage parlor or karaoke bar business, it is the turnover of the massage or karaoke activities, excluding turnover of other goods and services.

- For golf business, it is the actual turnover of the sale of membership cards and golf playing tickets, which also includes the golf playing fees paid by members and deposit money (if any). In cases where a deposit sum is returned to the depositor, the establishment shall be refunded the already paid tax amount by deducting it from the payable tax amount of the next period; if not deducted, the tax shall be refunded according to regulations. Golf business establishments dealing in goods and/or other services which are not liable to SCT shall not have to pay SCT for such goods and services. For example: A golf business establishment deals in hotels, food catering, the sale of goods or various games, such goods and services shall not be subject to SCT.

- For casino service and jackpot games, it is the sale turnover minus prize money paid to winners, namely the sum collected from changes for players at the money change counters or playing tables, slot machines minus the changed sum returned to customers.

- For business in horse-race and car-race bet tickets, it is the ticket sales turnover minus the amount of prize money paid to bet winners. The horse-race and car- race ticket turnover is not liable to SCT but liable to value-added tax.

- The SCT calculation price for goods and services used for exchange, internal consumption, as gifts or presents shall be the SCT calculation price of goods and services of the same or equivalent type at the time when such activities occur.

The SCT calculation price for home-made goods and services liable to SCT shall include surcharges (if any) outside the selling prices of goods and services. which are enjoyed by establishments.

II. SCT RATES

Under the provisions of Article 6, Decree No.84/1998/ND-CP of the Government, the applicable SCT rates are specified as follows:

The application of SCT rates to a number of goods and service categories in the tax index is specified as follows :

1. For goods liable to SCT, the SCT rates shall be applied, regardless of whether they are imported goods or home-made goods.

2. The filter cigarettes produced mainly from imported raw materials in the 60% tax rate group are those produced from imported shred tobacco which accounts for 51% or higher of the total volume of the shred tobacco raw materials used for the production of such products.

3. The tax rate of 15% applies to medicinal liquors, irrespective of their alcoholic strength. Establishments producing medicinal liquors must have the licenses therefor and the medicinal liquor label, trademark and quality registration certificates granted by health bodies or competent agencies. The imported medicinal liquors must be certified by health bodies or competent agencies that they are medicinal liquors. If the above- prescribed papers are not available, the SCT shall be paid according to the tax rate applicable to liquors of the equivalent alcoholic strength.

4. Automobiles in the group of 30% tax rate include cars of from 16 to under 24 seats, passenger-cum-cargo vehicles corresponding to the type of from 16 to under 24 seats and lambrettas of various types.

5. Votive paper offerings liable to SCT at the tax rate of 60% do not include children�s joss-paper toys and those used for decoration.

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

I. TAX REGISTRATION, TAX DECLARATION AND PAYAIENT AND RECEIPTS, VOUCHERS

1. Tax registration:

Under the provisions of Article 7, Decree No.84/ 1998/ND-CP of the Government, the tax registration is specified as follows: Establishments producing goods and/or providing services, which are liable to SCT, including their attached units, branches and stores, shall have to make tax registration with the tax authorities of the localities where they conduct their production and business activities according to the guidance on tax registration declaration and tax-payers� codes registration as prescribed in Circular No.79/1998/TT-BTC of June 12, 1998 of the Ministry of Finance guiding the implementation of the Prime Minister�s Decision No. 75/1998/QD-TTg of April 4, 1998 on tax-payers’ codes.

For new production and/or business establishments, the tax registration time-limit shall be 10 days after they are granted the business registration certificates.

In case of merger, consolidation, division, separation, dissolution, bankruptcy, change of business lines or trades, or business cessation, the concerned production and/or business establishments shall have to report it to the tax authority at least 05 days before such change occurs.

2. Establishments producing goods liable to SCT and using trademarks shall have to register such trademarks with the tax authorities of the localities where the establishments conduct their production and/ or business activities within 05 days from the date the trademarks are used. In case of trademark change, the establishments shall have to declare such change with the tax authorities and register the new trademarks within (15 days after the trademark change.

For establishments producing cigarettes, apart from the above-mentioned trademark registration, they shall also have to register with the tax authorities the shred tobacco raw material consumption norm for the production of each kind of cigarette, clearly stating the volume of shred tobacco for the production of a product unit and the ratio between the imported shred tobacco volume and the total volume of shred tobacco used for the production of products, which shall serve as basis for accurate determination of SCT rates.

3. Tax declaration:

Under Article 9, Decree No.84/1998/ND-CP of the Government, establishments producing or importing goods and/or providing services, which are liable to SCT, shall have to declare SCT according to the following regulations:

a/ Establishments producing goods and/or providing services, which are liable to SCT, shall have to declare SCT when such goods are sold, exchanged, donated, given as gifts or presents or internally consumed, when the processed goods are returned to processees and/or the services are provided. The tax declaration must be made every month and the declaration form shall be submitted together with the list of sale vouchers. The deadline for submitting the SCT declaration shall not be later than the 10^th of the following month. For example, the establishment shall have to submit the February 1999 tax declaration to the tax authority not later than March 10, 1999.

Particularly for production establishments with large payable SCT amounts, the SCT declaration shall be submitted once every 05 or 10 days and every month according to the following regulations:

+ Beer-producing establishments and cigarette- producing establishments with a capacity of 10 million litres or less/year and 10 million packs or less/year, respectively, establishments manufacturing automobiles or air-conditioners- and alcohol- manufacturing establishments shall periodically submit their tax declaration once every 05 days.

+ Beer-producing establishments and cigarette- producing establishments with a capacity of 10 million litres or less/year and 10 million packs or less/year respectively shall periodically submit their tax declarations once every 05 days.

The periodic tax declaration shall be submitted on the following day of the 05- or 10- days period. The monthly tax declaration shall be submitted according to the prescribed time-limit.

In cases where a production establishment sell their goods through branches, stores, affiliates, or through agents which sell at prices fixed by establishments and enjoy commissions, or entrusted sales the production establishment shall have to declare and pay SCT for the whole volume of such goods at the localities where it has registered the tax payment declaration. Such branches, stores and affiliates, when submitting their reports to the production establishment, shall concurrently send their copies to the tax authorities in localities where they sell goods for monitoring.

In cases where no SCT arises in the month, the production establishments shall still have to make the tax declaration and send it to the tax authority as prescribed.

Where a production establishment sells its goods through branches and/or affiliates in other localities (provinces, cities), the tax shall be declared on the basis of goods delivery bills of the production establishment and the tax shall be settled according to the actual sale turnover of such branches and/or affiliates.

b/ Goods-importing establishments shall have to make and submit the import goods declaration upon each importation together with the import tax declaration to the import tax collecting agencies.

In cases where it is the entrusted import, the import entrustee shall declare and pay SCT.

c/ Establishments which produce goods liable to SCT from raw materials already imposed with SCT, when declaring SCT at the production stage, shall be entitled to deduct the SCT amount already paid for such raw materials provided that valid vouchers are shown. The deducted amount of SCT on raw materials shall not exceed the SCT amount corresponding to the volume of raw materials used for the production of sold goods.

The SCT deduction shall be effected together with the tax payment declaration, and the payable tax amount in this case shall be determined according to the following formula:

Example: In the tax declaration period, Establishment A conducts the following operations :

+ Importing 10,000 litres of liquid beer, and having paid VND25 million of SCT for the such beer.

+ Ex-warehousing 8,000 litres for the production of 24,000 cans of beer.

+ Selling 20,000 cans on which the payable SCT is VND47 million.

+ The SCT amount already paid on liquid beer for the production of 20,000 cans of beer is VND 6.6 million.

The SCT amount to be paid by Establishment A in the period is:

VND 47 million - VND16.6 million = VND 30.4 million

In cases where the SCT amount already paid for the raw material volume corresponding to the volume of products sold in the period has not yet been accurately determined, the figure of the preceding period may be used to temporarily calculate the deductible SCT amount, which shall be settled according to the actual figure at the end of the month or the quarter. In all circumstances, the deductible SCT amount shall not exceed the SCT amount calculated for the raw materials according to techno-economic norms set for thc products. The production establishments shall have to register the products’ techno-economic norms with their respective direct managing tax authorities.

d/ Establishments producing goods of many kinds and providing services of various kinds, which are liable to SCT at different tax rates, shall have to declare and pay SCT according the tax rate set for each kind of goods and each kind of service; if such establishments fail to determine tax according to separate tax rate, they shall have to calculate and pay SCT at the highest tax rate among the rates set for their goods and services.

e/ Where exporting establishments, which have bought goods for export, fail to export but sell them domestically, they, besides paying VAT on goods to be sold, shall, within 5 days after ex-warehousing the goods for sale, have to fully declare and pay SCT for the concerned production establishments. The SCT calculation price in this case shall be the buying prices of the exporting establishments; if it is unable to determine the buying price. SCT shall be calculated according to the establishments’ actual selling prices without SCT.

4. Invoices, vouchers:

Under the provisions of Article 13, Decree No.84/1998/ND-CP of the Government, establishments producing or importing goods and/or providing services, which are liable to SCT, shall have to strictly abide by the regimes of book-keeping, invoices, receipts and vouchers when goods are purchased, sold, and/or transported, and services are provided, in accordance with the provisions of law.

When selling goods and delivering goods to branches, affiliates and agents, the production establishments shall have to use sale invoices. For goods ex-warehoused for branches and agents which sell such goods at the set prices for commissions, the prices written on the invoices shall be the selling prices set for such branches and agents by the production establishments. Where branches and/or attached stores are located in the same province or city with their respective production establishments or goods are transferred from warehouse to warehouse, the establishments may use the ex-warehousing- cum- internal transport bills.

5. Tax payment :

Under Article 10 of Decree No.84/1998/ND-CP of the Government, the SCT shall be paid into the State budget according to the following regulations:

a/ Establishments producing goods and/or providing services, which are liable to SCT, shall have to pay SCT into the State budget at their respective localities according to the tax notices issued by the tax authorities.

The time-limit for payment of a month�s tax shall be stated in the tax notice but not later than the 20^th of the following month.

For establishments with large payable SCT amounts, which are subject to the periodic tax declaration of every 05 or 10 days, they shall pay tax according to the tax authorities notices, but the deadline for payment of the month’s tax shall not be later than the 20^th of the following month.

For individuals and/or households that produce goods and/or provide services, which are liable to SCT, and are situated far away from the State treasuries, the tax authorities shall organize the tax collection and payment into the State budget. The timelimit for tax authorities to pay tax money into the State budget shall be no more than 3 days from the date the tax sums are collected.

b/ Establishments importing goods liable to SCT shall have to pay SCT upon each importation at the places where they declare and pay import tax. The timelimit for tax notice and the timelimit for payment of SCT on import goods shall comply with the timelimits for import tax notice and payment.

c/ The SCT shall be paid into the State budget in VN dong. Where production and/or business establishments buy and sell goods and/or services in foreign currency(ies), such foreign currency(ies) must be converted into Vietnam dong at the average actual buying and selling rates on the inter-bank market, announced by the State Bank at the time the turnover is generated, so as to determine the payable SCT amount. The prices of import goods, calculated in foreign currency(ies), must be converted into VN dong at the prescribed-above exchange rate(s) at the time of SCT calculation.

6. SCT settlement:

Under Article 11, Decree No.84/1998/ND-CP of the Government, establishments producing goods and/or providing services, which are liable to SCT, shall have to settle SCT according to the following regulations :

a/ Establishments producing goods and/or providing services, which are liable to SCT, shall have to effect the financial settlement according to the State�s regulations; on the basis of such financial settlement, the establishments shall annually settle SCT with the tax authorities. The establishments shall have to fully declare the indices on the payable tax amounts, the already paid amounts, the outstanding amounts or the amounts paid in excess by the time of settlement, according to set form of tax settlement and forward such declarations to the tax authorities within the prescribed time-limit. The tax settlement year shall be calculated according to the calendar year; where a business establishment is entitled to apply the financial settlement year other than the calendar year, the SCT must still be settled according to the calendar year. The timelimit for production and/or business establishments to submit their tax settlement to the tax authorities shall not exceed 60 days from December 31 of the tax settlement year.

In cases where production establishments sell goods through branches and/or attached units in localities other than the localities of production, the tax settlement shall be based on the actual sales turnover of such branches and/or attached units.

The production and/or business establishments shall have to pay the outstanding SCT amounts into the State budget within 10 days after the submission of their tax settlement reports; the amounts paid in excess shall be deducted from the payable amount of the following period or reimbursed according to regulations.

b/ In case of merger, consolidation, division, separation, dissolution, bankruptcy, or change of business lines and trades, the production and/or business establishments shall have to settle tax with the tax authorities and send the tax settlement reports to the tax authorities within 45 days from the date the decision on such change is issued, and have to pay the outstanding tax amounts into the State budget within 10 days after the submission of the tax settlement reports; the amount paid in excess shall be deducted from the payable tax amount of the following period or be reimbursed according to regulations.

The production and/or business establishments shall have to bear the responsibility for the truthfulness and accuracy of the settlement figures, if any establishments make false reports so as to evade tax, they shall be dealt with according to law.

II. SCT REIMBURSEMENT

Under Article 12 of Decree No.84/1998/ND-CP of the Government, establishments producing or importing goods, or providing services, which are liable to SCT, shall have their SCT reimbursed in a number of cases with the following concrete bases, for determination of tax reimbursement, dossiers thereon and competence to decide the tax reimbursement;

1. For import goods:

a/ When temporarily imported goods for which the SCT has already been paid are re-exported, the already paid SCT amount corresponding to the volume of re- exported goods shall be reimbursed;

Where the imported goods, for which the SCT has already been paid, are still left in stocks and/or storing yards at the import border gates but allowed to be re- exported, the reimbursement of tax for the re-exported goods volume shall be considered.

b/ The import goods with SCT thereon being already paid according to declaration, but the actually imported volume is smaller than the declared volume; the import goods which are, in the course of importation, destroyed or lost with plausible reasons, for which the SCT has already been paid;

c/ For import goods with quality and types being incompatible with those prescribed in the contract(s) and/or the import permits (due to the foreign goods owners’ fault in sending them), which are expertised by competent control body and confirmed by the foreign goods owners, and which are allowed to be imported, the customs authority shall examine and re- determine the payable SCT amount; the tax amount paid in excess, if any, shall be reimbursed and the outstanding tax amount, if any, must be fully paid.

In cases where the goods are re-exported back to foreign country(ies), the SCT amount already paid for the re-exported volume shall be reimbursed;

Where the goods are returned to the foreign party(ies) in the period in which import tax is not paid yet according to regulations, the customs authority shall check the procedures and not collect the SCT on the volume of imported goods returned to the foreign party(ies).

d/ For goods temporarily imported for trade fairs and/or expositions, for which the SCT has already been paid, the tax shall be reimbursed when such goods are re-exported;

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

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

f/ Goods imported by Vietnamese enterprises which act as delivery and/or sales agents for foreign countries, for which the tax has been collected at the importation stage as registered, the tax amount paid for the volume of goods actually exported out of Vietnam shall be reimbursed.

* Regarding the procedures, dossiers, orders and competence for settlement of the SCT reimbursement for import goods in cases mentioned above, they shall comply with the regulations on the import tax reimbursement under the provisions of the Law on Export Tax and Import Tax.

2.a/ Production and/or business establishments which have SCT paid in excess when they are merged, consolidated, divided, separated, dissolved or bankrupt shall be entitled to request the tax authority to reimburse the SCT amount paid in excess, with the following procedures and dossiers:

+ The official letter requesting the reimbursement of the SCT amount paid in excess.

+ The decision on the merger, consolidation, division, separation, dissolution or bankruptcy.

+ SCT settlement by the time of merger consolidation, division, separation, dissolution or bankruptcy.

The directors of the Tax Departments of the provinces or cities where the production and/or business establishments have registered and declared the tax payment are competent to decide the tax reimbursement in these cases.

b/ Production and/or business establishments shall be reimbursed the SCT if it is so decided by the competent bodies according to the provisions of law or by the Minister of Finance.

* The tax authority shall have to examine the dossiers, determine the tax amount to be reimbursed, issue the tax reimbursement decision for cases that fall under the jurisdiction stipulated in Point 2a above and reimburse tax to tax payers by deducting it from the payable tax amount of the following period; where deduction cannot be made, the dossiers shall be sent to the finance body for carrying out procedures for tax reimbursement strictly in accordance with the provisions of Item 4, Part IV, Circular No.103/1998/ TT-BTC of July 18, 1998 of the Ministry of Finance, guiding the assignment, drafting, implementation and settlement of State budget.

D. TASKS, POWERS AND RESPONSIBILITY OF THE TAX AUTHORITIES

Under Article 14 of Decree No.84/1998/ND-CP of the Government, the tax authority, shall have the following tasks, powers and responsibility.

1. To guide the tax payers to fully abide by the regulations on tax registration, declaration and payment according to the provisions of the tax law.

Production and/or business establishments that fail to comply with the regulations on tax registration, declaration and payment shall be handled according to law by the tax authority for their tax-related administrative violations.

2. To issue tax notices to tax payers on the payable tax amount and the tax payment timelimit as prescribed. The tax notices must be addressed to tax payers at least 03 days before the tax payment deadline stated therein, and the deadline for payment of a month’s tax must not be later than the 20^th of the following month.

Particularly for business individuals who pay tax according to pre-set turnover levels, the notification on the set tax amount to be paid and the tax payment date shall be made in the month or early next month.

If past the tax payment timelimit stated in the tax notice, the tax payer still fails to pay tax, the tax authority shall issue another notice; if past the payment deadline prescribed by law the subject still fails to pay tax, the tax notice must state the payable tax amount and the amount of fine on the late payment as prescribed in Clause 2, Article 17 of the Special Consumption Tax Law.

The time of fining the late payment of monthly tax shall be counted from the 21^st of the following month; the time of fining the late payment of tax on imported goods and other cases shall be calculated from the date after the tax payment deadline prescribed by law. If the establishment still refuses to pay tax and fine according to the notices, the tax authority shall have the right to apply or request the competent body(ies) to apply measures for handling tax-related administrative violations as stipulated in Clause 4, Article 17 of the Special Consumption Tax Law in order to ensure the full collection of tax amounts and fines. In cases where measures have been applied to administratively sanction the tax violations and the establishment still refuses to fully pay the tax and fine amounts, the tax authority shall transfer the dossiers to competent bodies for handling according to law.

3. To examine and inspect the tax declaration, payment and settlement by production and/or business establishments so as to ensure their strict compliance with law.

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

5. To request tax payers to submit accounting books, invoices, vouchers and other documents relating to tax calculation and payment; to request credit institutions, banks and relevant organizations and individuals to supply materials relating to the tax calculation and payment.

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

7. The tax authority may set the payable SCT for tax payers in the following cases:

a/ Where the production and/or business establishments have failed to implement or improperly implemented the invoice and voucher regime;

For individuals and small-sized production and/or business households (called collectively the business households) that fail to effect all purchases and sales of goods and/or services with invoices or vouchers, the tax authority shall base itself on the actual production and/or business situation to set the turnover and the payable SCT amount and notify the tax payers thereof for implementation;

The fixed tax amount to be paid each time may be determined as basis for stable tax collection within 03 months, 06 months or 12 months, depending on each business line, the price fluctuation level and the business situation of the tax payers. The tax authority shall have to openly notify the turnover levels and the fixed tax amounts for these subjects. Those households who cease their business operation shall have to declare it with the tax authority, if the business operation is ceased for a whole month, the fixed tax amount set for such month shall not be paid.

If small business households, that pay tax at the fixed level for each period, cease their business operation for a whole month, they shall be considered for non-collection of the set tax amount provided that they make a written request (according to set form and guidance of the tax authority), declaring in detail the reasons therefor, the number of days of business cessation, and submit it to the district tax authority.

The tax authority shall check the request and decide the non-collection of tax set for the month when business operation is actually ceased. Small business households are entitled to fixed tax levels for each goods category or business line in conformity with the specific situation of the locality as prescribed by the Ministry of Finance. The provincial/municipal Tax Departments shall base themselves on the households� business situation and the guidance for classification to determine small households in their respective localities for management and collection of tax as prescribed;

b/ Where they fail to make the declaration or where past the prescribed time-limit the declaration form has not submitted, where they are notified and reminded but still fail to comply with, or where the tax declaration is submitted but the bases for determining the SCT amount are wrongly declared;

c/ Where they refuse to produce the accounting books, invoices, vouchers and necessary documents related to the SCT calculation;

d/ Where they are detected having conducted business without business registration and without tax registration and payment declaration.

The tax authority shall base itself on the document on the investigation of the establishment�s business situation, or base itself on the payable tax amount of the production and/or business establishments having the same business line and the similar business scale so as to fix the payable tax amount for each establishment in the above-said cases.

Where the tax payers disagree with the set payable tax amounts they shall be entitled to complain to the tax authority that fix the tax level or the immediate higher-level of the former. Pending a solution, the concerned tax payers shall still have to pay tax according to the levels set by the tax authority.

E. SCT REDUCTION AND EXEMPTION

As prescribed in Article 16, Decree No.84/1998/ ND-CP of the Government, the SCT reduction and exemption are stipulated in various cases with procedures and dossiers as follows:

1. Cases of tax reduction or exemption and the procedures and dossiers required therefor:

a/ Establishments producing goods liable to SCT, which meet with difficulties due to natural calamities, enemy sabotage or unexpected accidents, thus suffering from losses, shall be considered for SCT reduction. The reduction level shall be determined on the basis of the loss amount caused by natural calamities, enemy sabotage or unexpected accidents but shall not exceed the value of the damaged property after the compensation (if any) is made therefor, and shall not exceed 30% of the payable tax amount prescribed by law for the year when the damage is caused.

To constitute grounds for considering the SCT reduction according to the above regulations, the production establishments shall have to submit the following dossiers:

+ A written request for SCT reduction, clearly stating the time and cause(s) of the damage, the value of damaged property, the loss amount incurred due to natural calamities, enemy sabotage, unexpected accidents, the payable tax amount, the proposed tax reduction amount.

+ A record confirming the level and value of damage in property by a competent body with certification by the local administration of the district or higher level.

+ The financial settlement accompanied by a written explanation and analysis of the damage, the loss amount incurred by the damage, and the tax settlement.

All the above-mentioned dossiers shall be addressed to the tax authorities that directly manage the establishments.

The tax authorities managing the establishments shall receive the dossiers, check documents and make written proposals to be sent together with such dossiers to competent bodies for decision on tax reduction.

Pending a tax reduction decision, an establishment shall still have to declare and fully pay tax as prescribed when the tax reduction decision is issued, the tax reduction amount shall be deducted from the payable tax amount of the following period.

In cases where an establishment producing goods liable to SCT meets with difficulties due to natural calamities, enemy sabotage or unexpected accident which caused heavy loss, making it unable to resume its production and/or business activities and to pay tax, it shall be considered for the exemption of the remaining payable SCT amount which it is unable to pay. The tax exemption shall be considered and decided by the Ministry of Finance on the case-by- case basis. The procedures and dossiers for a tax exemption request in this case shall comply with the above regulations on tax reduction consideration, but clearly determine the establishment�s incapability to resume production and/or business and to pay tax.

b/ Establishments producing beer, which has been established and operating before January 1^st, 1999, having the capacity of 10 million or less litres/year and if having fully paid the SCT according to the prescribed tax rates and suffered from losses, shall be considered for SCT reduction. The tax reduction level shall correspond to the loss amount incurred in the tax reduction year but shall not exceed the payable tax amount arising in the year. The tax reduction shall be considered according to the calendar year. The time for tax reduction consideration shall not exceed 05 years from January ^1st, 1999.

The procedures and dossiers for tax reduction consideration in this case shall be as follows:

+ The application for tax reduction submitted by the brewery, stating clearly that it has operated before January 1^st, 1999, as well as its designed capacity, actual production output, the payable tax amount prescribed by law, the loss amount and the requested SCT reduction amount.

+ The techno-economic feasibility study report or the investment project for beer production, including study report, project or plan for investment in expansion or supplement; the record on the initial acceptance and handover of the project to be put into production.

+ The financial settlement and the tax settlement for the year of tax reduction application.

The tax authority that manages the establishment shall receive, examine and certify the dossiers, then make recommendation on tax reduction for the establishment, which shall be sent together with the dossier to the competent body for tax reduction decision.

For production establishments eligible for SCT reduction consideration as prescribed above, pending the official decision on tax reduction, the provincial/municipal Tax Departments shall base themselves on quarterly settlement to determine the loss amount and let the establishment defer the SCT payment. If there are grounds to determine the monthly loss, the SCT payment maybe deferred on the monthly basis.

c/ Automobile assembling and/or manufacturing establishments shall be entitled to the 95% reduction of the tax rates prescribed in the Special Consumption Tax Law for 05 years from January 1^st, 1999 to the end of December 31^st, 2003. The SCT amounts to be paid by such establishments during the above- mentioned tax reduction period shall be determined for each type of automobile as follows:

- For cars of 5 seats or under: the prescribed tax rate is 100%, reduced by 95%, and the payable tax rate is 5%.

- For cars of from 6 to 15 seats: the prescribed tax rate is 60%, reduced by 95%, the payable rate is 3%.

- For cars of from 16 to 24 seats: the prescribed tax rate is 30%, reduced by 95%, and the payable tax rate is 1.5%.

Example: In 1999, in the tax declaration period, Car Manufacturing Establishment A experiences following production and business situation:

- The turnover for cars of 5 seats or under is VND 15 billion.

- The turnover for cars of from 6 to 15 seats is VND 10 billion

- The turnover for cars of from 16 to 24 seats is VND 5 billion.

The Establishment shall calculate, declare and pay SCT in the period as follows:

After 05 years’ application of tax reduction according to the above regulations, the further SCT reduction for 01 to 05 more years for automobile manufacturing establishments shall be considered under the Government’s regulations.

d/ Golf business establishments are entitled to the 30% reduction of the tax rates prescribed by the Special Consumption Tax Law for 03 years from January 1^st, 1999 to December 31, 2001. The SCT rates applicable to golf business in 1999, 2000 and 2001 is 14%.

From January 1^st, 2002, the golf business establishments shall have to declare and pay SCT on golf business turnover: the sale of membership cards and golf playing tickets, at the tax rate of 20% as prescribed in the Special Consumption Tax Law.

2. Competence and order for considering tax reduction and exemption:

a/ The competence to consider the SCT reduction or exemption in cases stipulated in Points 1.a and 1.b above is specified as follows:

- The General Director of General Department of Taxation shall consider and decide cases of tax reduction or exemption valued at under VND500 million /year.

- The Minister of Finance shall consider and decide cases of tax reduction or exemption valued at VND 500 million/year or more.

b/ The order for SCT reduction or exemption consideration:

- The provincial/municipal Tax Departments and Sub-Departments, upon the receipt of SCT reduction or exemption dossiers submitted by establishments, shall have to examine the dossiers, determine the tax reduction or exemption amounts and make written recommendation to be sent together with the dossiers to the superior tax authorities within 15 working days after receiving the complete dossiers; in cases where the Tax Departments receive dossiers from Sub-Departments, the timelimit for submitting the written recommendation to the superior tax authority shall be 10 working days.

- The General Department of Taxation shall examine, consider and decide the tax reductions or exemptions for establishments or submit dossiers to the Ministry of Finance for settlement within 15 working days after the receipt of complete dossiers.

In cases where an establishment is not eligible for tax reduction or thc dossier is incomplete as required, the tax reduction or exemption dossier-receiving agency shall, within 10 working days, have to reply the establishment or notify it thereof for supplementing the dossier.

F. HANDLING OF VIOLATIONS, REWARD

I. HANDLING OF TAX-RELATED VIOLATIONS

1. Regarding the tax-payers:

According to the Special Consumption Tax (SCT) Law and Decree No. 84/1998/ND-CP of the Government, any tax payers who violate the SCT Law

shall be handled as follows:

a/ Those who fail to comply or have improperly complied with the regulations on procedures for business registration, the registration, declaration, payment and settlement of tax, on accounting book opening and keeping invoices and vouchers relating to tax calculation and payment, shall be subject to warning or a pecuniary fine, depending on the seriousness of their violations.

b/ Those who delay the payment of tax or fines stated in the tax notices, tax collection orders or sanction decision shall, besides having to fully pay the tax or fine amounts according to law, have to pay a fine equal to 0.1% (one thousandth) of the deferredly paid amount for a day of late payment.

c/ Those who falsely declare or evade tax shall, besides having to fully pay the tax amounts prescribed by the SCT Law, be subject to a fine which is one to five times the evaded tax amount, depending on the nature and seriousness of the violations; those who evade tax in large amounts or were once sanctioned for tax-related administrative violations but have committed other serious violations shall be examined for penal liabilities according to law.

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

- Having their deposits at banks, State treasuries and/or credit institutions deducted for payment of tax and/or fines;

Concerned banks, treasuries and/or credit institutions shall have to deduct money from deposit accounts of concerned tax payers for payment of tax and/or fines into the State budget according to tax-handling decisions of the tax authorities or competent bodies before debt recovery;

- Having their goods and/or material evidences seized to ensure full collection of tax and/or fines;

- Having their property inventoried according to law provisions to ensure the full collection of tax and/or fine arrears.

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

2. Regarding tax officials and other individuals:

According to provisions of Article 19 of the SCT Law and Article 17 of Decree No.84/1998/ND-CP of the Government, the tax officials and other individuals who violate the SCT Law shall be handled as follows:

a/ The tax officials or other individuals who take advantage of their positions and powers to illegally use or appropriate tax money and/or fines shall have to fully return the amounts of tax money and/or fines they have illegally used or appropriated, and shall be disciplined or examined for penal liabilities according to law provisions, depending on the nature and seriousness of their violations.

b/ The tax officials or other individuals who have shown irresponsibility or made wrong handling, thus causing damage to tax-payers, shall have to compensate therefor according to the provisions of civil legislation. The tax officials or other individuals who have caused damage shall be disciplined or examined for penal liabilities according to law provisions, depending on the nature and seriousness of the violations.

c/ The tax officials or other individuals, who take advantage of their positions and powers to act in complicity with or protect the SCT Law violators or commit other acts in violation of the provisions or the SCT Law, shall be disciplined or examined for penal liabilities according to law, depending on the nature and seriousness of their violations.

d/ Those who obstruct or incite other people to obstruct the enforcement of the SCT Law shall be administratively handled or examined for penal liabilities according to law, depending on the nature and seriousness of the violation.

II. REWARD

According to Article 20 of the SCT Law and Article 18 of Decree No.84/1998/ND-CP of the Government, the tax authorities and tax officials who well fulfill their assigned tasks as well as organizations and individuals that record achievements in the implementation of the SCT Law, and the tax payers who well fulfil their tax obligations shall be rewarded.

III.COMPETENCE TO HANDLE TAX RELATED VIOLATIONS

The tax authorities of all levels, upon detection of any violations of the SCT Law by any business establishments, shall have to inspect the situation and clearly determine acts of violation, their seriousness and causes, the responsibility of organizations and individuals for such acts of violation and compile the dossiers thereof as prescribed. Basing themselves on the regulations and levels of sanction against administrative violations in the field of tax, the tax authorities shall, within their respective sanctioning competence, issue sanctioning decisions or propose the superior tax authorities or law bodies to sanction the violations according to prescribed competence; concretely:

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

2. Directors of the provincial/municipal Tax Departments and heads of the tax authorities that directly manage the tax collection shall be entitled to apply the handling measures prescribed at Point 1.d, Item I, Part E of this Circular in accordance with the provisions of law and transfer the dossiers to the competent bodies for handling according to the provisions of law, as for violations specified in Point 1.c, Item I, Part F of this Circular.

G. COMPLAINTS AND STATUTE OF LIMITATIONS FOR ENFORCERMENT

1. The tax-payers’ rights and responsibilities in making complaints about tax:

According to Article 21 of the SCT Law, organizations and individuals have the right to complain about improper implementation of the SCT Law by tax officials or tax authorities against establishments. The written complaints must be addressed to the tax authorities that issue tax-notices, tax collection orders or handling decisions within 30 day’s after the receipt of the collection orders or handling decisions. Pending a solution, the complaining organization or individual shall still have to pay fully and on time the amounts of tax and/or fine stated in the tax notice. If the complaining organization or individual disagrees with the tax authority’s decision on settlement of complaints or if past the timelimit of 30 days from the date of sending the complaint the complaining organization or individual has not received any reply yet, it or he/she may further complain to the superior tax authority or initiate a lawsuit before court as prescribed by law.

The procedures and order for lodging complaints or lawsuits as well as for considering and solving them must comply with the current provisions of law.

2. The tax authority’s responsibility and rights in settling complaints about tax:

Under Article 22 of the SCT Law, the tax authority at all levels, upon receiving complaints about tax from tax-payers, shall have to consider and settle them within 15 days from the date of receiving the complaints. For complicated cases or matters which require much time to investigate and verify, it shall inform the involved party(ies) thereof, but the timelimit for settling them must not exceed 30 days after receiving the written complaints; if the cases or matters do not fall under its jurisdiction, it shall have to transfer the dossiers or report them to the competent body(ies) for settlement and notify the involved party(ies) thereof within 10 days after receiving the complaints. If a tax authority detects and concludes any false declaration, tax evasion or mistakes in taxation or fining, it shall have to collect the tax or fine arrears or return the wrongly calculated tax and/or fine amounts retrospectively for 05 years from the date such false declaration, tax evasion or mistakes are detected. In cases where a business establishment fails to declare and pay tax, the time for retrospective collection of tax and fines shall be counted from the date the establishment commenced operation.

H. IMPLEMENTATION ORGANIZATION

1. This Circular takes effect from January 1^st, 1999. All legal documents on SCT previously issued by the Ministry of Finance and other ministries or branches are annulled from the date this Circular takes effect.

2. The settlement of all remaining tax problems, settlement, tax reduction and exemption and the handling of all SCT-related violations before January 1^st,1999 shall be effected according to corresponding provisions of the SCT Law, the laws amending and supplementing a number of articles of the SCT Law and the regulations on SCT in the legal documents being in force then.

3. Where an international treaty which the Socialist Republic of Vietnam has signed or acceded to contains provisions different from those in the SCT Law, the SCT shall comply with such international treaty.

4. The SCT collection is stipulated as follows:

a/ The General Department of Taxation shall organize the collection of SCT from establishments which produce goods and/or provide services, liable to SCT.

b/ The General Department of Customs shall collect such tax on import goods which are liable thereto. The implementation, handling of violations regarding and settlement of complaints about, SCT on import goods shall comply with the provisions of the Law on Export Tax and Import Tax.

c/ The General Department of Taxation and the General Department of Customs shall have to cooperate with each other in the management of SCT collection nationwide.

If any problems or difficulties arise in the course of implementation, units and agencies are requested to promptly report to the Ministry of Finance for study and additional guidance or supplement.