Thông tư 193/2009/TT-BTC

CIRCULAR

DETAILING THE GOVERNMENT'S DECREE NO. 97/2007/ND-CP OF JUNE 7, 2007, STIPULATING THE HANDLING OF ADMINISTRATIVE VIOLATIONS AND ENFORCEMENT OF ADMINISTRATIVE DECISIONS IN THE CUSTOMS DOMAIN, AND THE GOVERNMENT'S DECREE NO. 18/2009/ND-CP OF FEBRUARY 18,2009, AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO. 97/2007/ND-CP

Pursuant to the June 29, 2001 Customs Law and the June 14, 2005 Law Amending and Supplementing a Number of Articles of the Customs Law;
Pursuant to the November 29, 2006 Tax Administration Law;
Pursuant to the National Assembly Standing Committee's July 2, 2002 Ordinance on Handling of Administrative Violations and April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations; the Government's Decree No. 128/2008/ND-CP of December 16, 2008, detailing a number of articles of the July 2, 2002 Ordinance on Handling of Administrative Violations and April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations;
Pursuant to the Government's Decree No. 37/2005/ND-CP of March 18, 2005, stipulating procedures for applying measures to enforce decisions on sanctioning administrative violations;
Pursuant to the Government's Decree No. 97/2007/ND-CP of June 7, 2007, stipulating the handling of administrative violations and enforcement of administrative decisions in the customs domain and the Government's Decree No. 18/2009/ND-CP of February 18, 2009, amending and supplementing a number of articles of Decree No. 97/2007/ND-CP;
Pursuant to the Government's Decree No. 98/2007/ND-CP of June 7, 2007, stipulating the handling of tax-law violations and enforcement of tax administrative decisions, and the Government's Decree No. 13/2009/ND-CP of February 13, 2009, amending and supplementing a number of articles of Decree No. 98/2007/ND-CP;
Pursuant to the Government's Decree No. 118/2008/ND-CPof November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance,
The Ministry of Finance provides in detail for the handling of administrative violations and enforcement of administrative decisions in the customs domain as follows:

Chapter I

HANDLING OF CUSTOMS-RELATED ADMINISTRATIVE VIOLATIONS

Section 1. GENERAL PROVISIONS

Article 1. Administrative violations in the customs domain

Administrative violations in the customs domain are acts intentionally or unintentionally committed by individuals or organizations in violation of regulations on the state management of customs (including taxation on imports and exports) which are not serious enough for penal liability examination but are subject to administrative sanction under the Decree on handling of administrative violations and enforcement of administrative decisions in the customs domain.

Article 2. Application of legal documents

1. The sanctioning of administrative violations, application of sanctioning forms, consequence remedies, application of measures to prevent administrative violations and assure sanctioning of administrative violations in the customs domain must comply with the principles, order, procedures and competence prescribed in the Tax Administration Law. the Ordinance on Handling of Administrative Violations, the Government's Decree No. 128/2008/ND-CP of December 16, 2008, detailing a number of articles of the 2002 Ordinance on Handling of Administrative Violations and the 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations; the Government's Decree No. 97/2007/ND-CP of June 7, 2007, stipulating the handling of administrative violations and the enforcement of administrative decisions in the customs domain, and the Government's Decree No. 18/2009/ND-CP of February 18.2009, amending and supplementing a number of articles of Decree No. 97/2007/ND-CP (below referred to as the Decree).

2. The application of regulations to sanctioning administrative violations in the customs domain complies with the provisions of Article 83 of the 2008 Law on Promulgation of Legal Documents; Clause 3, Article 55 of Decree No. 97/2007/ND-CP of June 7, 2007; and Clause 2, Article 2 of Decree No. 18/2009/ND-CP of February 18, 2009.

Article 3. Application of principles on sanctioning of administrative violations

1. Individuals and organizations committing acts in violation of regulations on the state management of customs shall be sanctioned under the Decree stipulating the handling of administrative violations and enforcement of administrative decisions in the customs domain or government decrees on sanctioning of administrative violations related to the customs domain.

Individuals and organizations that have committed acts of administrative violation but refuse to receive goods must still be responsible for their committed acts.

2. When issuing sanctioning decisions against violators, persons with sanctioning competence shall base themselves on the nature and severity of violation, extenuating and aggravating circumstances specified in Articles 8 and 9 of the Ordinance on Handling of Administrative Violations; Article 6 of Decree No. 128/2008/ ND-CP of December 16, 2008: Articles 3 and 4 of the Decree, and the following specific-provisions:

a/ An act of violation committed by the same individual or organization at a time with respect to many declaration forms or contracts shall be sanctioned only once and subject to the aggravating circumstance of "committing a violation more than once in the same domain.''

In case a violator has been sanctioned for an act of violation but, within one year after completely serving the sanctioning decision or after the expiration of the statute of limitations for implementing sanctioning decisions, relapses into committing it with respect to another goods lot, he/she/it will be sanctioned with the aggravating circumstance of recidivism under Clause 3, Article 6 of Decree No. 128/2008/ND-CP of December 16, 2008;

b/ First-time violation in the customs domain referred to in Clause 1, Article 3 of the Decree is the case in which an individual or organization that has never been sanctioned for an administrative violation in the customs domain or had been sanctioned for an administrative violation and completely served the sanctioning decision one year or more ago or does not commit recidivism after the expiration of the statute of limitations for sanctioning decisions.

3. For an act of violation in the customs domain which is the consequence of another act of violation in the same customs domain, only the act subject to a heavier penalty shall be sanctioned.

Article 4. Cases not subject to customs-related administrative sanction

The application of cases not subject to customs-related administrative sanction under Article 7 of the Decree is as follows:

1. Goods and means of transport brought into Vietnam due to fire, natural disaster, enemy sabotage, unexpected event or in urgent circumstances which are subject to declaration and have been declared to customs offices, other competent agencies or local administrations under law.

In case of non-declaration, they shall be handled under current law.

2. Notification of errors referred to in Clause 3, Article 7 of the Decree, which is made in writing by consignors, consignees or lawful representatives clearly stating the reason, and addressed to customs offices and enclosed with documents related to such errors before customs offices conduct physical inspection of goods or decide on exemption from physical inspection of goods, and accepted by heads of customs offices that receive and process customs dossiers.

If there are grounds for ascertaining the collusion between consignor, consignee and/or carrier for the purpose of tax evasion, illegal border-cross transportation of goods or smuggling, customs offices have the right to refuse to accept errors.

3. Point b. Clause 4. Article 7 of the Decree applies to cases specified at Point c, Clause 1, Article 12 of the Ministry of Finance's Circular No. 79/2009/TT-BTC of April 20, 2009, guiding customs procedures, customs inspection and supervision: import and export duties and tax management of imports and exports.

4. For cases specified in Clauses 5, 6 and 8, Article 7 of the Decree:

a/ At the time of detecting an act of violation, if having sufficient grounds for ascertaining that the case is not subject to sanction, the person with sanctioning competence shall only certify the dossier filing;

b/ If there are insufficient grounds for ascertaining whether an act of violation is subject to sanction, the customs officer on duty shall make a written record on customs-related administrative violation. On the basis of the customs dossier, related documents, and the written record of customs-related administrative violation, the person with sanctioning competence defined in Clause 2, 3 or 4. Article 28 of the Decree shall decide whether to sanction the violation.

c/ Acts in violation of tax law related to imports and exports specified in Clause 5, Article 7 of the Decree include acts specified in Clause 4, Article 9 and Clauses 1 and 2, Article 14 of the Decree.

5. The case specified in Clause 7. Article 7 of the Decree:

a/ The customs declarant declares a wrong tax identification number or tax rate for the first time, the customs office guides the declaration of the correct tax identification number or tax rate, makes a written certification record and imposes no sanction.

b/ Declaration of a wrong tax identification number or tax rate shall be regarded as first time when fully meeting the following conditions:

b.1. The declarant imports or exports no goods within one year (up to the date of registration of the customs declaration for the importation or exportation of the goods lot for which a wrong tax identification number or tax rate is declared) or has imported or exported such goods but declared a wrong tax identification number or tax rate, which has not yet been detected;

b.2. The customs office has not yet provided any guidance on the declaration of tax identification number or the tax rate of this goods or has provided incorrect guidance.

Article 5. Valuation of violating goods and material evidence for determining fines and the sanctioning competence

1. For material evidence and means which are not subject to confiscation, the value of such material evidence and means is their customs value, which has been determined under customs valuation regulations at the time of making violation records; if they are foreign currencies, exchange rates shall be determined under the Ministry of Finance's guiding documents on customs procedures, customs inspection and supervision; import and export duties and tax management of imports and exports.

2. For violating goods, material evidence and means subject to confiscation, depending on each specific kind thereof, their value shall be determined based on the grounds stated in Clause 2, Article 36a of the Decree and Article 34 of the Government's Decree No. 128/2008/ND-CP of December 16, 2008.

3. Documents related to valuation must be stated in the dossier on the handling of the case of administrative violation in which violating goods, material evidence and/or means were valued.

Article 6. Handling of violating goods and means not subject to confiscation

1. If temporarily seized goods are not subject to confiscation, the person having issued the seizure decision shall issue a decision to return them.

2. Returned goods are allowed to go through customs procedures according to regulations; if they are liable to import or export duty and other related taxes, such duty and taxes shall be paid according to regulations.

Article 7. Calculation of time limits and statutes of limitations

1. Time limits and statutes of limitations prescribed in the Ordinance on Handling of Administrative Violations which are stipulated in months or years shall be counted in calendar months and years, including weekends and holidays prescribed in the Labor Code.

2. Time limits in the Ordinance on Handling of Administrative Violations which are stipulated in days shall be counted in working days, excluding weekends and holidays prescribed in the Labor Code.

Section 2. APPLICATION OF SANCTIONING FORMS AND LEVELS

Article 8. Violations of the provisions of Article 8 of the Decree on time limits for carrying out customs procedures and submitting tax dossiers

1. The lime limit for carrying out customs procedures in Article 8 of the Decree is that prescribed in Article 18 of the Customs Law and legal documents stipulating time limits for carrying out customs procedures for each type of import or export.

2. In case the customs declarant requests adjustment of the wastage norm of materials used for processing goods for export or imported materials for producing goods for export after products are exported and such adjustment is accepted by the customs office, sanctioning shall be conducted under Point d, Clause 1. Article 8 of the Decree.

3. Acts of violation specified at Points e and f. Clause 2; Points a and b. Clause 3. Article 8 of the Decree shall be sanctioned only if permits, customs declarations or other papers as prescribed by law set a time limit for re-import or re-export.

4. The time limit specified at Point b. Clause

2. Article 8 of the Decree is that for liquidation of contracts, declarations, goods, materials and supplies prescribed in legal documents on customs.

5. The measure of "forced re-export of goods" specified at Point a. Clause 5, Article 8 of the Decree is applicable only to the act of "failing to re-export goods within the prescribed time limit or the lime already registered with the customs office" specified at Point e. Clause 2 and Point a, Clause 3, Article 8 of the Decree.

If the act of "failing to re-export means of transport within the prescribed time limit" specified at Point f. Clause 2 or Point b, Clause

3. Article 8 of the Decree is detected when the individual or organization is carrying out procedures for re-exporting the violating means, the consequence remedy of "forced re-export" does not need to be applied: only the principal sanction will be indicated in the sanctioning decision and the customs office shall complete re-export procedures for the means of transport after the sanctioning decision is complied with.

Article 9. Violations of the provisions of Article 9 of the Decree on customs declaration and tax declaration

1. In case of importing goods or articles different from those indicated in customs declarations while customs procedures are carried out by post or express delivery enterprises on behalf of goods owners under law, if there are no evidence of collusion between consignor, consignee and person carrying out customs procedures for fraud purpose, no sanction shall be imposed.

2. For acts of non-declaration or wrong declaration of goods on the list of humanitarian or non-refundable aid certified by the Ministry of Finance or an agency authorized by the Ministry of Finance, sanction shall be imposed under Point c. Clause 1, Article 9 of the Decree.

3. If the goods are not on the list already certified by a competent agency, depending on each specific act of violation, sanction shall be imposed either under Point b. Clause 4, Article 9 or Point b, Clause 1, Article 16 of the Decree.

3. In case of importing goods different from those indicated in customs declarations which are duty-free materials, supplies, machinery, equipment or components such as goods under registered processing contracts, goods on the list of duty-free goods of investment projects, sanction shall be imposed under Point a. Clause 2, Article 9 of the Decree, and such goods shall be reconciled against the contract or the registered list; if importing goods which are not duty-free, sanction shall be imposed under Clause 4, Article 9 of the Decree.

4. For temporarily imported or exported goods which are different from those indicated in customs declarations and are duty-free, sanction shall be imposed under Point b. Clause 2, Article 9 of the Decree; in case these goods are not exempt from import or export duty, depending on the nature and severity of violation, sanction shall be imposed either under Clause 4, Article 9 or Clause 1 or 2, Article 14 of the Decree.

5. Clause 3. Article 9 of the Decree is applicable to the case in which customs declaration has been made and customs procedures have been carried out but goods are not exported yet or are exported insufficiently compared to customs declaration. This provision is not applicable to customs declarations invalid for carrying out customs procedures under Clause 2, Article 18 of the Customs Law.

6. Sanctioning under Clause 4, Article 9 of the Decree is applicable to acts of violation in different types of importation or exportation of goods resulting in tax amounts which are smaller than payable ones or higher than amounts which are eligible for exemption, reduction, refund or non-collection.

7. For violations of Point a. Clause 4. Article 9 of the Decree involving a wrongly declared content which is the consequence of an act of violation specified in Clause 1. Article 14 of the Decree, sanction shall be imposed under Article 14 of the Decree.

8. For acts of non-declaration or declaration of wrong names, categories, quantities, weights, quality, values and codes, duty rates or origin of imports or exports, verification should be conducted to clarify; if these acts do not fall into the cases specified in Clause 1, Article 14 of the Decree, sanction shall be imposed either under Point b or c. Clause 4, Article 9 of the Decree on a case-by-case basis.

9. For acts of declaring more categories or larger quantities or weights than those of actually exported goods being processed goods or products made from imported materials (including materials and supplies re-exported and imported for production but re-exported), resulting in a tax amount difference of under VND 50 million, sanction shall be imposed under Point b. Clause 4, Article 9 of the Decree.

Article 10. Violations of the provisions of Article 10 of the Decree on customs declaration by persons on entry or exit of foreign currency, Vietnamese currency in cash or gold (in bars, ingots, granules or pieces)

1. Violations of the provisions of Article 10 of the Decree apply to persons who leave or enter the country with passports, laissez passers or border identity cards and bring along foreign currency. Vietnamese currency in cash or gold in bars, ingots, granules or pieces and violate regulations on customs declaration when carrying out entry or exit procedures. Other cases of bringing foreign currency, Vietnamese currency in cash or gold across the border shall be sanctioned under Article 13 of the Decree.

2. The value of material evidence is the value minus the value of foreign currency, Vietnamese currency or gold not subject to customs declaration under law.

3. Person on entry or exit who carry jewelry gold and violate regulations on customs declaration shall be sanctioned like those carrying other imports or exports.

Article 11. Violations of the provisions of Articles 11,12 and 13 of the Decree on customs inspection, tax inspection, customs supervision and control

1. Point b, Clause 2, Article 11 of the Decree is applicable to cases in which the storage of samples and dossiers and documents is required by legal documents.

2. Point c. Clause 3, Article 11 of the Decree is applicable to cases of failure to comply with requests of customs offices in accordance with relevant legal documents for tax examination and inspection.

3. Upon detecting violations of Point b. Clause 4. Article 11 of the Decree, written records shall be made on the seizure of forged customs seals or customs dossier documents. If these documents are permits, notification shall be made to permit-granting agencies.

4. Violations of regulations on movement of means of transport carrying goods in transit, out of port or border gate along prescribed routes, to places or border gates of destination or beyond time limits prescribed or registered in customs dossiers without any explanations or with explanations rejected by leaders of district-level Customs Departments, shall be sanctioned under Point a, Clause 1, Article 12 of the Decree.

5. Point d. Clause 1, Article 12 of the Decree is applicable only to cases in which material evidence has not yet been dispersed or sold out. If there remains no material evidence, sanction shall be imposed under Points a and c, Clause 2, Article 12 of the Decree.

6. Acts of violations of Points a and b, Clause 2, Article 13 of the Decree committed by under-14 persons shall be recorded in writing and decisions on confiscation or destruction of material evidence shall be issued.

7. Upon sanctioning violations specified in Clauses 2 and 3 and Point a. Clause 4, Article 13 of the Decree, persons with sanctioning competence defined in Clauses 2, 3 and 4. Article 28 of the Decree shall request valuation of material evidence and means in these violations under Clause 2, Article 5 of this Circular in order to determine the level of fine and sanctioning competence.

Article 12. Sanctioning of acts of tax evasion or fraud prescribed in Article 14 of the Decree

1. Documents referred to at Point a. Clause 1 of Article 14 include documents already submitted or presented to customs offices in the course of carrying out customs procedures and after customs clearance as bases for determining or proving payable tax amounts.

2. "Previous importation" referred to at Point b. Clause 1. Article 14 of the Decree is determined as importation taking place within one year (365 days) before the time of violation.

3. For acts of non-declaration or declaration of wrong names, categories, quantities, weights, quality, values and codes, duty rates or origin of imports or exports which are detected after customs clearance of the goods, if violators fail to voluntarily pay sufficient tax amounts or have only paid insufficient tax amounts according to regulations before tax offices make written records on violation, they shall be sanctioned under Point c, Clause 1, Article 14 of the Decree.

4. Violations of Point d. Clause 1. Article 14 of the Decree on management of goods in non-tariff zones apply to cases in which at the time of customs inspection there is no goods or a smaller quantity of goods than stated in liquidation reports or records of enterprises.

5. Violations related to exports being processed products, products made from imported materials, including materials and supplies processed for re-export and imported materials and supplies for production for re-­export, are specified below:

a/ In case of having carried out export procedures but failing to export, sanction shall be imposed under Point e, Clause 1, Article 14 of the Decree. This provision is not applicable to cases in which completed customs declaration forms are not valid for carrying out customs procedures under Clause 2. Article 18 of the Customs Law;

b/ In case the declared categories, quantities or weights of exports are greater than those actually exported, resulting in a tax amount difference of VND 50 million or more but not to the level subject to penal liability examination, sanction shall be imposed under Point f. Clause 1, Article 14 of the Decree.

6. Acts specified at Point m. Clause 1. Article 14 of the Decree are applied when customs offices have sufficient grounds for ascertaining that taxpayers clearly know that goods have been actually exported or imported but fail to declare or make wrong declaration for tax evasion purpose.

7. Grounds for determining underpaid tax amounts in case of declaring insufficient tax amounts, tax evasion and tax fraud include declarations of taxpayers and tax assessment decisions of competent persons.

Article 13. Violations related to import and export permits and conditions

1. Permits, conditions and technical standards referred to in Article 16 of the Decree are those prescribed in the Governments Decree No. 12/2006/ND-CP of January 23, 2006, its guiding documents and other government decrees stipulating permits, conditions and technical standards for imports and exports.

2. In case goods are on the list of imports subject to licensing of the Ministry of Industry and Trade or the management of a line ministry (but not on the list of banned imports) and still within the time limit for carrying out customs procedures but their owners fail to carry out import procedures and request permission for re-­export, no sanction shall be imposed.

3. In case imported goods and articles violate Article 16 of the Decree but customs procedures are carried out by post or express delivery enterprises on behalf of goods owners under law. if consignees refuse to receive these goods and there is no ground for ascertaining that the goods are brought into Vietnam at the request of consignees, no sanction shall be imposed on goods consignees. Material evidence shall be handled under Clause 2, Article 35 of the Decree.

4. The additional sanction of deprivation of the right to use permits is applicable only to permits directly related to goods being material evidence.

In case of depriving the right to use a permit granted by another competent state agency, within 5 (five) days from the date of issuing the sanctioning decision, the customs office shall notify in writing such agency of the deprivation.

5. For violations related to import permits and export and import conditions involving goods which are exchanged between border inhabitants, humanitarian donations, gifts, personal belongings and goods of persons on entry or exit; goods in transit or transported to another border gate; temporarily imported goods for re-export, temporarily exported goods for re-import, depending on each specific act of violation, sanction shall be imposed under Clause 1. Clause 2 or Clause 3, Article 16 of the Decree; in other cases, sanction shall be imposed under Clause 4, Article 16 of the Decree.

6. For violations specified at Point c, Clause 3; Points a, b, h, Clause 4; and Point a, Clause 6, Article 16 of the Decree, if line management agencies request the violating goods to be taken out of Vietnamese territory or be re-exported, the sanction of confiscation of material evidence shall not be imposed but the request of the line management agency shall be complied with.

7. For violations related to import permits, conditions and technical conditions specified in Clause 2: Points a and b. Clause 3; Points d and f, Clause 4, Article 16 of the Decree, if a permit of a competent agency is obtained before the issuance of the sanctioning decision, the additional sanction of forced taking out of Vietnam shall not be imposed. If the sanctioning decision has been issued and the consequence remedy of "forced taking out of Vietnam" has been applied but within 30 days after the receipt of the sanctioning decision the line management agency issues an import permit and the goods have not yet taken out of Vietnam, the importation will be permitted.

Article 14. Violations of regulations on bonded warehouses and tax suspension warehouses

Goods owners that fail to carry out procedures for extending bonded warehouse lease contracts under law, fail to notify customs offices or take goods out of bonded warehouses upon the expiry of bonded warehouse lease contracts shall be sanctioned under Clause 1, Article 17 of the Decree while their goods shall be handled under Clause 4, Article 24 of Decree No. 154/2005/ ND-CP of December 15, 2005.

Article 15. Handling of violations of state treasuries, commercial banks and other credit institutions and related organizations and individuals

1. Clause 1, Article 19 of the Decree is applicable to cases in which past 10 days after the expiration of the time limit for deduction of money from account, the state treasury, commercial bank or another credit institution fails to make such deduction or transfer the whole or part of the money equal to the payable amount from the account of the organization or individual subject to enforcement of an administrative decision into the state budget revenue account or the custody account of the customs office opened at the state treasury at the request of the customs office when, at the time of receipt of the enforcement decision, there is a credit balance on the deposit account of such organization or individual.

2. Clause 3 of Article 19 is not applicable to organizations and individuals being taxpayers. Organizations and individuals being taxpayers that violate regulations on provision of information shall be sanctioned under Point b, Clause 3, Article 11 of the Decree.

Section 3. IMPLEMENTATION OF MEASURES TO PREVENT ADMINISTRATIVE VIOLATIONS AND ASSURE THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS

Article 16. When applying the measure of detaining persons according to administrative procedures, the following principles must be adhered to:

1. Only competent persons defined in Article 23 of the Decree may issue decisions on detention of persons according to administrative procedures.

2. To detain a person, there must be a written decision a copy of which shall be given to the detainee.

3. Detention of a person according to administrative procedures may be effected only when it is necessary to immediately prevent or stop acts of disturbing order in the area of customs operation or injuring a customs officer on duty or to collect and verify important or complicated circumstances related to an act of violation for use as a basis for issuing an administrative sanction decision or assuring the handling of the violator.

4. Detention of a person must comply with the Regulation on detention of persons according to administrative procedures issued together with the Government's Decree No. 162/2004/ND-CP of September 7, 2004, Decree No. 19/2009/ND-CP of February 19, 2009, amending and supplementing a number of articles of the Regulation on detention of persons according to administrative procedures issued together with the Government's Decree No. 162/2004/ND-CP of September 7. 2004. and the Ministry of Public Security's Circular No. 26/2007/TT-BCA of November 15,2007, guiding a number of articles of the Regulation on detention of persons according to administrative procedures issued together with the Government's Decree No. 162/ 2004/ND-CP of September 7, 2004.

Article 17. Temporary seizure of documents, material evidence and means in administrative violations

1. When applying the measure of temporarily seizing documents, material evidence and means in administrative violation, the provisions of Article 24 of the Decree shall be complied with.

Customs procedures for imports and exports, goods in transit, means of transport on entry, exit or in transit which are not subject to temporary seizure comply with current law.

2. If there are grounds to believe that unless they are immediately seized, material evidence and means in administrative violation may be dispersed or destroyed, the immediate superior of the customs officer may issue a decision to temporarily seize material evidence and means in administrative violation. Within 24 hours after issuing the decision, the issuer shall report to his/her superior who is one of the persons competent to temporarily seize material evidence and means in administrative violation defined in Clause 1, Article 24 of the Decree for written approval. Without such written approval, the issuer shall immediately cancel the temporary seizure decision and return the seized articles, money, goods or means.

3. In case of post-customs clearance inspection at the head office of a taxpayer or tax inspection, if signs of tax evasion or fraud are detected, the General Director of Customs, the director of the Post-Customs Clearance Inspection Department of the General Department of Customs, directors of provincial-level Customs Departments, directors of district-level Customs Departments or heads of tax inspection teams may decide to temporarily seize documents, material evidence or means in administrative violation.

Article 18. Body search according to administrative procedures

The competence to conduct and order of conducting body search according to administrative procedures must satisfy the conditions specified in Article 25 of the Decree.

Article 19. Search of means of transport and articles according to administrative procedures

1. The competence to conduct and order of searching means of transport and articles according to administrative procedures must satisfy the conditions specified in Article 26 of the Decree.

2. Search of means of transport and articles of those entitled to diplomatic privileges and immunities and consular immunities must comply with the provisions of treaties which Vietnam has signed or acceded to and be subject to decisions of the General Director of Customs.

When having grounds for confirming that personal belongings of persons on entry or exit entitled to diplomatic privileges and immunities or consular immunities contain articles ineligible for such privileges or banned by the Vietnamese State from import or export or not yet been quarantined according to Vietnamese regulations, such personal belongings may be searched under decisions of the General Director of Customs in the presence of the diplomats concerned or their authorized persons.

Article 20. Search of places where documents, material evidence and means related to acts of violation are hidden

1. Only persons who are defined in Clause 1, Article 23 of the Decree may issue decisions to search places where documents, material evidence and means in administrative violations are hidden. Search of these places must comply with the provisions of Article 49 of the Ordinance on Handling of Administrative Violations and Article 27 of the Decree.

2. If, through post-customs clearance inspection at the head office of a taxpayer or tax inspection, signs of tax evasion or fraud are detected, the General Director of Customs, the director of the Post-Customs Clearance Inspection Department of the General Department of Customs, directors of provincial-level Customs Departments or directors of district-level Customs Departments may decide to search places where documents, material evidence or means in administrative violation are hidden.

Section 4. SANCTIONING COMPETENCE

Article 21. Determination of sanctioning competence

1. The administrative violation-sanctioning competence of customs departments at all levels prescribed in Clauses 1, 2, 3 and 4. Article 28 of the Decree is applicable to a single act of administrative violation. In case of imposing a fine, the competence is based on the maximum level of the fine bracket prescribed for each specific act of violation.

In case of sanctioning a person for different customs-related acts of administrative violation, the sanctioning competence is determined as follows:

a/ If the sanctioning forms and levels prescribed for each act all fall within the competence of a sanctioning person defined in Clause 1, 2, 3 or 4. Article 28 of the Decree, the sanctioning competence will rest with this person;

b/ If the fine level or one of the sanctioning forms or consequence remedies does not fall within or falls beyond the competence of the person handling the violation case, the violation case shall be promptly transferred to a person with sanctioning competence.

2. Those defined in Clause 6, Article 28 of the Decree have the competence to sanction acts of non-declaration or wrong declaration resulting in a tax amount lower than the payable amount or higher than the refundable or non-collectable amount: tax evasion or fraud: late tax payment; failure to deduct or transfer money from accounts of violating organizations or individuals into state budget revenue accounts or temporary deposit accounts of customs offices opened at the state treasury prescribed in Clause 4. Article 9, Article 14, Article 15, and Point a. Clause 1, Article 19 of the Decree. The sanctioning level shall be determined under the Decree, without restriction on the maximum fine level.

3. For an administrative violation with its dossier related to different customs offices, the unit that is the first to detect and make a written record on the violation may issue a sanctioning decision; other related units shall transfer all necessary documents to the unit that handles the case upon request.

4. Handling of violations related to goods transported from or to border gate:

a/ For violations related to goods transported from or to border gate detected by border-gate district-level Customs Departments, if these violations show criminal signs, border-gate district-level Customs Departments shall request district-level Customs Departments that have received customs declarations to transfer all related dossiers for handling according to criminal procedures;

b/ If goods transported to or from border gate are involved in administrative violations, border-gate district-level Customs Departments shall transfer their dossiers to district-level Customs Departments that have received customs declarations for sanctioning according to their competence. If material evidence being goods banned from import or hazardous waste or transmitting epidemics are detected at border gates, district-level Customs Departments that have received their customs declarations shall transfer their dossiers to border-gate district-level Customs Departments for sanctioning according to their competence;

c/ Within 5 days after issuing handling decisions, handling units shall notify handling results to related customs offices thereof.

5. When detecting acts of violation in the customs domain, persons with sanctioning competence should refer to the Penal Code to decide whether these acts are administrative violations or crimes. If these acts show criminal signs, they shall comply with the criminal procedure law. For signs of the crime of tax evasion, within 10 (ten) working days after detecting these signs, they shall transfer their dossiers to competent agencies for investigation according to regulations.

6. For cases of violation detected and seized by units of the Anti-Smuggling Investigation Department which are liable to fine levels beyond the competence of leaders of anti-smuggling control teams or commanders of marine control flotillas under the Anti-Smuggling Investigation Department, the sanctioning competence shall be decided by the director of the Anti-Smuggling Investigation Department of the General Department of Customs.

Article 22. Authorized handling of administrative sanctions

The authorization of holders of posts defined in Clauses 2, 3 and 4, Article 28 of the Decree to handle administrative violations may be allowed for deputies only. Authorization must be made in writing. A document of authorization must indicate the scope, content and duration of authorization. For a decision on temporary detention of a person according to administrative procedures, authorization may be made only when the head is absent.

The authorized person shall take responsibility before law and his/her head for his/ her handling of administrative violations and may not further authorize any other person.

Section 5. PROCEDURES FOR SANCTIONING ADMINISTRATIVE VIOLATIONS AND IMPLEMENTING DECISIONS ON SANCTIONING ADMINISTRATIVE VIOLATIONS

Article 23. Issuance of sanctioning decisions

1. When sanctioning administrative violations in the customs domain in the form of caution, competent persons shall issue on-spot sanctioning decisions.

2. A decision on sanctioning an administrative violation takes effect on the date of its signing, unless another effective date is prescribed in the decision. Within 10 days after being handed a sanctioning decision, the sanctioned individual or organization shall abide by the sanctioning decision of a competent person.

3. A sanctioning decision shall be issued under Article 56 of the Ordinance on Handling of Administrative Violations and Article 23 of the Government's Decree No. 128/2008/ND-CP of December 16, 2008.

4. The time limit for issuing a sanctioning decision is 10 (ten) days from the date of making the written record on the administrative violation. For an administrative violation involving complicated circumstances, the time limit for issuing a sanctioning decision is 30 (thirty) days from the date of making the written record on the administrative violation. If finding it necessary to have more time for verifying and collecting evidence for issuing a sanctioning decision, the person with sanctioning competence shall report it in writing to his/her immediate superior for extension permission. The extended time must not exceed 30 (thirty) days.

5. For an act of late tax payment specified in Article 15 of the Decree, neither written record shall be made nor sanctioning decision be issued but the taxpayer himself/herself shall determine the fine amount to be paid for the late tax payment into the state budget. Past 30 (thirty) days from the expiration of the time limit for tax payment, if the taxpayer still fails to fully pay the tax amount and fine, the competent person specified in Clause 6, Article 28 of the Decree shall issue a notice of the tax debt and the fine for late tax payment calculated up to that point of time, requesting the taxpayer and his/her guarantor to fully pay the tax amount and fines into the state budget.

6. For diplomats and consular officers who abuse their diplomatic privileges and immunities for commercial purposes beyond their functions to commit customs-related administrative violations, before sanctioning them, opinions should be exchanged with their diplomatic missions.

Article 24. Payment of fines in installments

The payment of fines in installments complies with Article 27 of the Government's Decree No. 128/2008/ND-CP of December 16, 2008.

The customs office that decides on the payment of a fine in installments shall calculate the interest rate for the unpaid fine amount on the basis of the non-term interest rate of any of state-run commercial banks operating in the locality.

The non-term interest rate is kept unchanged from the time the sanctioning decision takes effect.

Article 25. Management of fines collected from the sanctioning of administrative violations

All collected fines shall be remitted into the custody account of the customs office opened at the state treasury according to current regulations. After the expiration of the time limit for lodging complaints or complaints have been completely settled, based on settlement results, customs offices shall transfer these amounts from their custody accounts into the state budget according to the State Budget Law. For amounts collected from the handling of administrative violations in the field of combat against smuggling, trade fraud and fake goods, they shall be dealt with under the Ministry of Finance's Circular No. 59/ 2008/TT-BTC of July 4, 2008.

Article 26. Exemption from administrative sanction under Article 38 of the Decree

1. Exemption from administrative sanction may be considered only for acts of violation specified in Clause4, Article9, Article 14, Article 15 and Article 19 of the Decree.

2. A dossier of exemption from administrative sanction comprises:

a/ Written request for exemption from administrative sanction, clearly stating the grounds for making the request;

b/ Written record on the administrative violation;

c/ Decision on sanctioning of the administrative violation (if any);

d/ Certification by the local administration of the details and time of occurrence of the natural disaster, fire, unexpected accident or another force majeure event;

e/ Written record jointly made by representatives of the damage sufferer and the local administration determining the value of damaged property and goods, the cause of the damage and the recoverable value of property and goods.

f/ The damage compensation dossier accepted by an insurer for compensation (if any);

g/ The dossier defining the compensation responsibility of organizations and individuals (if any).

3. The procedures and order for considering exemption from administrative sanction:

a/ The dossier of request for exemption from administrative sanction shall be submitted to the agency competent to consider exemption from administrative sanction defined in Clause 4, Article 38 of the Decree;

b/ On the basis of the submitted dossier and conditions for exemption from administrative sanction specified in Clause 2, Article 38 of the Decree, the director of the provincial-level Customs Department, the director of the Anti-Smuggling Investigation Department or the director of the Post-Customs Clearance Department shall consider and decide on exemption from administrative sanction.

If doubting the truthfulness of a dossier of request for exemption from administrative sanction, examination and verification shall be conducted before decision.

4. While exemption from administrative sanction is under consideration, the sanctioning decision may not be enforced.

Article 27. Transfer of dossiers for criminal handling

1. In examining a case of violation for making decision on sanctioning, if finding that the act of violation shows criminal signs, the case dossier shall be transferred to a competent person for consideration and institution of a criminal case (for crimes specified in Articles 153 and 154 of the Penal Code) or a written request enclosed with a photocopied set of the dossier shall be sent to a criminal procedure-conducting agency for consideration and institution of a criminal case, for cases showing other criminal signs.

2. If the criminal procedure-conducting agency notifies its decision to institute a criminal case, the customs office shall transfer the original dossier of the case to the competent procedure-conducting agency within 5 (five) working days after receiving the notice.

3. Past 3 (three) days after the expiration of the time limit prescribed in Article 103 of the Criminal Procedure Code, if the customs office receives no notice of the criminal procedure-conducting agency of whether to institute a criminal case, the person with sanctioning competence defined in Article 28 of the Decree shall issue a decision on sanctioning the administrative violation under law and notifies the criminal procedure-conducting agency of its sanctioning.

The re-counting of the time limit for issuing a sanctioning decision under Clause 4, Article 39 of the Decree is as follows:

a/ If the case of violation had seen an extended time limit for issuing a sanctioning decision under Clause I, Article 56 of the Ordinance on Handling of Administrative Violations before it was transferred to the criminal procedure-conducting agency, the time limit for issuing a sanctioning decision is 10 days from the date of re-counting the time limit for issuing a sanctioning decision. For a case of administrative violation involving complicated circumstances, the time limit for issuing a sanctioning decision is 30 days and may not be extended.

b/ If the person with sanctioning competence had not requested for permission to extend the time limit for sanctioning under Clause 1. Article 56 of the Ordinance on Handling of Administrative Violations before transferring the case of violation to the criminal procedure-conducting agency, the time limit for issuing a sanctioning decision shall be re-counted under Clause 1. Article 56 of the Ordinance on Handling of Administrative Violations, and may be extended under law.

Article 28. Supervision of the taking out of Vietnamese territory or re-export of violating goods

Violating goods forced to be taken out of Vietnamese territory or be re-exported are subject to strict supervision from the storage to the border gate of re-exportation. Supervision results shall be recorded in case dossiers.

Article 29. Handling of confiscated material evidence

1. Confiscated material evidence shall be handled under Article 61 of the Ordinance on Handling of Administrative Violations and Article 35 of the Government's Decree No. 128/2008/ND-CP of December 16, 2008.

2. For material evidence confiscated under decisions of directors of provincial, inter-provincial or municipal Customs Departments (below referred collectively to as provincial-level Customs Departments), the director of the Anti-Smuggling Investigation Department, the director of the Post-Customs Clearance Inspection Department and directors of district-level Customs Departments or customs control teams of provincial-level Customs Departments based in provincially or centrally run cities, they shall be handed to provincial-level auction service centers of the places where acts of violation occur for auction.

3. For material evidence confiscated under decisions of directors of district-level Customs Departments, heads of customs control teams of provincial-level Customs Departments, except the case stated in Clause 2 above; heads of anti-smuggling control teams and commanders of marine control flotillas of the Anti-Smuggling Investigation Department of the General Department of Customs, proposal shall be made to chairpersons of district-level People's Committees of the places where acts of violation occur or the agencies of the persons issuing confiscation decisions are based to set up auction councils for auctioning the material evidence.

An auction council is composed of a leader of the agency issuing the confiscation decision as its head, a leader of the district-level finance agency as its deputy head and. depending on the characteristics of each specific case, the person competent to set up the auction council may decide to invite other members to participate in the council.

Chapter II

ENFORCEMENT OF ADMINISTRATIVE DECISIONS IN THE CUSTOMS DOMAIN

Article 30. Scope of and persons subject to enforcement

1. Enforcement of an administrative decision in the customs domain is applicable to an individual or organization obliged to abide by an administrative decision in the customs domain when he/she/it fails to voluntarily abide by the decision or commits an act of dispersing property or attempts to escape after the time limit for abiding by such decision, and enforcement measures are to be taken to assure compliance with the administrative decision under Clause 2, Article 41 of the Decree.

2. The application of measures to enforce administrative decisions in the customs domain must comply with the order, procedures and competence prescribed in the Tax Administration Law, the Ordinance on Handling of Administrative Violations, the Government's Decree No. 37/2005/ND-CP of March 18, 2005, stipulating the procedures for applying measures to enforce decisions on sanctioning administrative violations. Decree No. 98/2007/ND-CP of June 7, 2007, stipulating the handling of violations of tax laws and enforcement of tax administrative decisions, and the Decree on sanctioning of administrative violations in the customs domain.

3. The following persons are subject to enforcement measures:

a/ Customs declarants and taxpayers that are obliged to abide by administrative decisions stated in Clause 2, Article 41 of the Decree but fail to do so;

b/ State treasuries, banks and other credit institutions; organizations and individuals managing salaries or incomes of individuals forced to comply with administrative decisions, that fail to comply with decisions on administratively sanctioning their acts of failing to deduct money of these individuals into the state budget revenue account or custody account of the customs office opened at the state treasury.

c/ Guarantors that fail to fulfill their obligation to pay tax and fines for taxpayers according to notices of customs offices when taxpayers fail to pay tax and fines;

d/ Organizations and individuals holding money and property of taxpayers, that fail to abide by decisions on enforcing the collection of such money and property;

e/ Related organizations and individuals that fail to abide by customs offices' decisions on sanctioning administrative violations.

Article 31. Cases of issuance of enforcement decisions

1. For tax-administrative decisions (including decisions specified at Points a, b, c and e, Clause
2, Article 41 of the Decree and sanctioning decisions specified in Clause 4, Article 9, and Article 14 of the Decree):

a/ Past 90 (ninety) days after the expiration of the time limit for abiding by administrative decisions in the customs domain, individuals, organizations or their guarantors fail to voluntarily abide by such decision;

b/ Individuals or organizations commit acts of dispersing their property or escaping when they have not yet abided by administrative decisions in the customs domain.

2. For other decisions on sanctioning administrative violations in the customs domain, past 10 (ten) days after the expiration of the time limit for complying with administrative decisions in the customs domain, individuals, organizations or their guarantors fail to voluntarily abide by such decisions.

3. Taxpayers are not subject to enforcement measures during the extended time of payment of tax and fines under Article 24 of the Government's Decree No. 85/2007/ND-CP of May 25, 2007, detailing a number of articles of the Law on Tax Administration.

Article 32. Monitoring and urging collection of tax debts and fines

1. Customs offices at all levels shall monitor and manage those that owe tax debts and fines; regularly classify these debtors and debts in order to collect these debts before the time of application of enforcement measures.

Forms of urging and collecting tax debts and fines:

a/ Sending notices to taxpayers and tax payment guarantors to fully pay tax debts and fines;

b/ Coming in person to head offices of taxpayers to claim tax debts and fines;

c/ Publishing online the list of those owing overdue tax debts and fines;

d/ Publishing on the mass media information on those owing tax and fines and owed tax amounts and fines.

2. When receiving notices of customs offices of tax debts and fines, taxpayers and guarantors that owe tax and fines shall promptly fully pay tax debts and fines under law. Past the time limit prescribed in Article 29 of this Circular, if failing to fully pay tax debts and fines, they shall face enforcement measures specified in Article 43 of the Decree.

Article 33. Competence to issue enforcement decisions

1. Directors of provincial-level Customs Departments, the director of the Anti-Smuggling

Investigation Department and the director of the Post-Customs Clearance Inspection Department may issue enforcement decisions and organize enforcement of administrative decisions issued by themselves or their subordinates.

2. In case of applying the enforcement measure of property distraint or seizure of money and property held by other organizations or individuals that are based in another locality, the director of the provincial-level Customs Department, the director of the Anti-Smuggling Investigation Department and the director of the Post-Customs Clearance Inspection Department shall issue an enforcement decision and send it to the Customs Department of that locality for organizing the implementation thereof.

3. When necessary to apply the enforcement measure of withdrawing the tax identification number, suspending use of invoices; revoking the business registration certificate or establishment and operation or practice license specified in Clause 8 or Clause 9, Article 43 of the Decree against an organization that owes tax and fines to more than one provincial-level Customs Department, the General Department of Customs shall notify the competent agency to issue a decision to withdraw the tax identification number, suspend use of invoices; revoke the business registration certificate or establishment and operation or practice license under Article 52 of the Decree and Article 65 of Decree No. 98/2007/ND-CP.

Article 34. Verification of conditions for implementation of enforcement decisions

1. The person competent to issue an enforcement decision shall, before issuing an enforcement decision, check available information in the database on the customs declarant or taxpayer in question, and has the power to verify information on the person against whom an enforcement decision is to be issued regarding his/her account, property and conditions for implementing the enforcement decision. Local administrations, ownership and use right registries, security transaction registries and related organizations and individuals shall create conditions and provide necessary information under law for agencies competent to implement enforcement decisions.

2. Verification of property subject to registration of transfer of ownership or use rights should be based on contracts on purchase and sale, exchange, transfer or giving as gifts; conducted with the assistance of owners, local administrations, functional agencies or witnesses such as certification by sellers, local administra­tions or functional agencies of the purchase and sale, and at the same time notification may be made publicly for persons with related rights and obligations to protect their interests.

If subject to enforcement are agencies or organizations, persons competent to issue enforcement decisions should verify the collectible sum of money by directly examining their assets, checking the system of records on capital and asset management and with the assistance of other agencies such as capital and asset management agencies, business and asset registries, banks, credit institutions, carriers, and other related individuals and organizations, to verify these agencies' or organizations' money and assets.

Article 35. Procedures for sending documents of request, notices and enforcement decisions to persons subject to enforcement and related organizations and individuals

1. Customs officers tasked to implement enforcement decisions shall personally hand enforcement documents to competent persons of organizations or persons named on these decisions. If it is difficult to do so, enforcement documents may be sent by registered mail.

If the recipient is absent, documents on implementation of an enforcement decision shall be handed to the head of the agency in which the recipient works or to his/her relative who has full civil act capacity and co-lives with the recipient, who will be requested to pledge to promptly hand these documents at the prescribed time to the person in question. The handing, receipt and notification must be certified with signatures; the time of handing of documents is the time the person receiving these documents for the recipient undertakes to hand these documents to the recipient. If. for an objective reason, this person cannot hand the documents to the recipient, he/she shall notify the customs office thereof.

2. If it cannot send the documents under Clause 1 above, the agency implementing the enforcement decision shall notify the contents of the documents by publicly posting up the original documents for at least 5 (five) working days at the head office of the People's Committee of the commune, ward or township where the head office of the institutional recipient is based or the individual recipient resides and at the residence of the individual recipient, if his/her place of residence is known.

The public posting must be recorded in a minutes indicating the date and time of posting, details of notification and the posting person, which must be certified by the local administration.

3. If it is impossible to make announcement in any of the forms above, notification shall be made for two consecutive times on a central newspaper, radio or television station or a newspaper, radio or television station of the province or centrally run city where the person subject to enforcement is determined to live.

After completing the announcement, the newspaper, radio or television station shall make a written certification of completion of the announcement and send the announcement to the customs office for filing.

Article 36. Principles of application of measures of enforcing administrative decisions in the customs domain

1. Measures of enforcing administrative decisions in the customs domain may be applied only in the cases specified in Article 42 of the Decree.

2. Persons competent to issue enforcement decisions shall base themselves on the details, characteristics and level of the obligation to implement decisions to enforce administrative decisions, conditions of persons subject to enforcement for abiding by enforcement decisions and practical local conditions to decide on the application of one enforcement measure after another prescribed in the Decree. In case a decision on the application of the subsequent enforcement measure has been issued but there arise information and conditions for implementing the preceding enforcement measure in the order prescribed in Article 43 of the Decree, the person competent to issue enforcement decisions may issue a decision on the implementation of the preceding enforcement measure to ensure full collection of tax and fines.

3. Enforcement may not be organized on weekends and holidays as prescribed in the labor law and outside working hours, within 15 (fifteen) days before and after the Lunar New Year Festival; traditional days of policy beneficiaries who are subject to enforcement, except when it is necessary to prevent persons subject to enforcement from dispersing and destroying their property or shirking abidance by enforcement decisions.

Article 37. Responsibilities of organizations implementing enforcement decisions

1. Persons issuing enforcement decisions shall organize the implementation of enforcement decisions. Agencies in charge of implementing enforcement decisions shall ensure order in the course of enforcement.

2. Persons issuing enforcement decisions shall coordinate with related agencies, organizations and individuals in taking measures to implement enforcement decisions.

3. When finding it necessary to have the participation of the people's public security force in the enforcement, a written request must be sent to the related public security agency 5 (five) working days before the enforcement for the latter to arrange its force. When requested to participate in ensuring order and safety in the course of enforcement, the people's police shall arrange its force to promptly stop acts of disturbing public order and resisting officers on duty in implementing enforcement decisions.

Article 38. Statute of limitations for implementing enforcement decisions

An enforcement decision is valid for one year from the date of its issuance. Particularly for a decision on enforcement with the measure of deducting money from the account of the person subject to enforcement, it is valid for 30 days from the date of its issuance.

Article 39. Enforcement measure of deducting money from deposit accounts

1. Enforcement by deducting money from deposit accounts to implement tax administrative decisions

a/ Persons competent to issue enforcement decisions shall organize direct or documentary verification of information on accounts and current account balances of persons subject to enforcement. The sending and receipt of documents comply with regulations on confidential documents. If these documents are sent by post, registered mail must be used. Persons competent to issue enforcement decisions shall keep confidential provided information on accounts of persons subject to enforcement;

b/ Within 3 (three) working days after receiving the request of a competent person, the person subject to an enforcement measure specified in Clause 3, Article 29 of this Circular (person subject to enforcement), state treasuries, commercial banks and other credit institutions at which the person subject to enforcement opens his/her account shall send documents indicating the name of the state treasury, commercial bank or credit institution at which the person subject to enforcement opens a deposit account, and the number and balance of the account. Past this time limit, if the above institutions fail to provide information, they shall be administratively sanctioned:

c/ Based on received information, competent persons shall issue a decision on enforcement by deducting money from the deposit account of the person subject to enforcement at the state treasury, commercial bank and other credit institutions. Such a decision must indicate the date of issuance, grounds for issuance, full name, post and working unit of the issuer; amount to be deducted (the same as that indicated in the administrative decision plus enforcement expenses calculated up to 5 (five) days before the date of enforcement); reason for enforcement; full name, tax identification number and account number of the person subject to deduction; name and address of the state treasury, commercial bank or another credit institution or financial institution at which the person subject to enforcement opens an account; name, address and state budget revenue account or custody account number of the customs office opened at the state treasury, method of transferring the deducted amount into the state budget revenue or custody account; and time limit for implementation. The decision must be signed by the issuer and sealed;

d/ The decision on enforcement by deducting money from deposit account shall be sent to the person subject to enforcement, state treasury, commercial bank, other credit institutions at which the person subject to enforcement opens a deposit account and concerned agencies at least 5 (five) days before the date of enforcement;

e/ The state treasury, commercial bank, other credit institutions in Vietnam at which the person subject to enforcement opens an account shall block the account if there is a balance thereon upon receiving an enforcement decision; transfer the money amount of this person into the state budget revenue account or custody account of the customs office opened at the state treasury indicated in the enforcement decision within 5 (five) days after receiving the decision, and concurrently notify it to the decision-issuing agency and the person subject to enforcement:

f/ If the deposit account of the person subject to enforcement has no balance for payment; the state treasury, commercial bank or other credit institutions shall send a written notice thereof to the enforcement decision issuer within 30 days from the date of receipt of the decision on enforcement by deducting money from deposit account;

g/ Within the time limit for implementing an enforcement decision, if there arises a balance on the account of the person subject to enforcement but the above institutions fail to deduct it into the state budget revenue account or custody account of the customs office opened at the state treasury according to the enforcement decision, they shall be administratively sanctioned under Point a. Clause 1, Article 19 of the Decree;

h/ After fully collecting the tax or fine, the customs office shall immediately notify the state treasury, commercial bank or other credit institutions to stop the account blocking and enforcement.

2. Enforcement by deducting money from deposit account to implement decisions on sanctioning other customs-related administrative violations

a/ Persons competent to issue enforcement decisions shall organize direct or documentary verification of information on accounts and current account balances of persons subject to enforcement. The verification procedures are the same as guided at Points a and b. Clause 1 above;

b/ Based on received information, persons competent to issue enforcement decisions shall issue a decision on enforcement by deducting money from the deposit account of the person subject to enforcement at the commercial bank and other credit institutions. Within 5 (five) days after receiving the enforcement decision, this person shall request the bank at which he/she opens an account to transfer money from his/her account into the state budget revenue account or custody account of the customs office opened at the state treasury indicated in the enforcement decision. Past this time limit, if this person refuses to comply with the enforcement decision, he/she will be subject to the measure of enforcement by distraining property under Section IV. Part II of this Circular;

c/ Within 5 (five) days after receiving the enforcement decision, the commercial bank or other credit institutions shall collaborate with the person issuing the enforcement decision in informing the account holder of the enforcement decision. Upon receiving the money transfer request of the account holder, the commercial bank or other credit institutions shall transfer money from the person subject to enforcement into the state budget revenue account or custody account of the customs office opened at the state treasury indicated in the enforcement decision, and concurrently notify it to the decision-issuing agency and the person subject to enforcement:

d/ If the account of the person subject to enforcement has no balance or has a balance insufficient for enforcement, the commercial bank or other credit institutions shall, after deducting the available balance, send a written notice thereof to the enforcement decision-issuing agency;

e/ If there is a balance on the account of the person subject to enforcement but the commercial bank or other credit institutions fail to deduct it into the state budget revenue account or custody account of the customs office opened at the state treasury according to the enforcement decision, they shall be administratively sanctioned under Point b. Clause 1, Article 19 of Decree No. 97/2007/ND-CP;

f/ After fully collecting the tax or fine, the customs office shall immediately notify the state treasury, commercial bank or other credit institutions to stop the enforcement.

Article 40. Enforcement measure of deducting part of salary or income

1. The enforcement measure of deducting part of salary or income is applicable only to individuals against whom decisions on sanctioning administrative violations are enforced who are cadres, civil servants or individuals working in agencies or organizations under contracts with an indefinite term or a term of 6 (six) months or longer and being paid salaries or incomes, or persons on monthly retirement pension or working capacity loss allowance.

2. Persons competent to issue enforcement decisions shall organize verification of lawful incomes of persons subject to enforcement, including salary, retirement pension, working capacity loss allowance, bonus and other lawful incomes.

3. Based on verification results, competent persons may issue decisions on enforcement by deducting part of salary or income of individuals subject to enforcement.

4. A decision on enforcement by deducting part of salary or income of an individual must clearly state the date of issuance, grounds for issuance; full name, post and working unit of the issuer; full name and address of the individual whose salary or income is to be partly deducted; name and address of the agency or organization managing the salary or income of the individual; the amount to be deducted (the same as that indicated in the administrative decision plus enforcement expenses up to 5 (five) days before the date of enforcement); reason for enforcement; name and address of the state treasury to receive the money; method of transferring the deducted amount to the state treasury; and time limit for implementation. The decision must bear the signature of the issuer and the seal of the decision-issuing agency.

5. Upon the nearest time of payment of salary or income, the agency, organization or employer managing the salary or income of the individual subject to enforcement shall deduct part of the salary or income of this individual according to the enforcement decision and transfer the deducted amount into the state budget revenue account or custody account of the customs office opened at the state treasury indicated in the enforcement decision, and concurrently notify the decision issuer thereof.

6. The deducted part of salary, retirement pension or working capacity loss allowance of an individual must not be lower than 10% (ten per cent) and higher than 30% (thirty per cent) of the total monthly salary income of the individual. For other kinds of incomes, the deducted part depends on the actually received income but must not exceed 50% (fifty per cent) of total income.

7. In case the tax money or fine is not yet fully deducted under the enforcement decision upon termination of the labor contract of the individual subject to enforcement, the employing agency or organization shall notify the decision issuer within 5 (five) working days after the date of termination of the labor contract.

8. Agencies, organizations or employers managing salaries or incomes of individuals subject to enforcement that fail to implement enforcement decisions shall be administratively sanctioned under Clause 2, Article 19 of Decree No. 97/2007/ND-CP.

Article 41. Enforcement measure of distraining property and auctioning distrained property

1. This enforcement measure is applied only when customs offices cannot apply enforcement measures specified in Clauses 1 and 2, Article 43 of the Decree because they have no information on deposit accounts and incomes of organizations or individuals subject to enforcement or have applied these measures but still fail to fully collect the tax debts and fines.

2. This measure may not be applied in the following cases:

a/ The person subject to enforcement is receiving medical treatment as certified by a health agency or organization:

b/ Past 15 (fifteen) days after receiving the request of the customs office, the person subject to enforcement fails to provide information on his/her existing own property and the customs office fails to receive other information on the property of this person:

c/ The property value of the person subject to enforcement is insufficient to cover enforcement expenses.

3. Types of property not to be distrained

a/ For organizations subject to enforcement:

a.1. Medicines, facilities, instruments and property of medical establishments, except for those circulated for business purposes: food, foodstuffs, instruments and furniture serving laborers' mid-shift meals:

a.2. Kindergartens, schools, equipment, facilities and instruments of these establishments, except for those circulated for business purposes:

a.3. Equipment, tools and instruments to ensure labor safely and prevent and fight fires and explosions, and prevent and control environmental pollution;

a.4. Important infrastructure facilities serving public interests, security and defense;

a.5. Raw materials, materials, finished products and semi-finished products being hazardous and dangerous chemicals or property banned from circulation;

a.6. Raw materials, materials and semi-finished products in closed production lines;

a.7. Working offices of state agencies, political organizations, socio-political organizations, socio-professional organizations, property procured with state budget.

b/ For individuals subject to enforcement:

b.1. Sole houses of individuals subject to enforcement and their families. For a person subject to enforcement who has more than one house, verification should be conducted to identify a house whose value is sufficient for paying tax debt, fine and enforcement expenses:

b.2. Medicines to meet medical prevention and treatment needs, food and foodstuffs lo mccl essential needs of the person subject to enforcement and his/her family:

b.3. Necessary common working tools used as main or sole means of livelihood of the person subject to enforcement and his/her family.

Valuable working tools such as motorcycles, automobiles, boats, ploughs, grinders and other valuable tools of a person subject to enforcement may still be distrained and auctioned to implement enforcement decisions and part of proceeds therefrom may be returned to that person to buy other working tools of lower value.

b.4. Necessary clothing and common utensils for the individual subject to enforcement and his/ her family within the minimum quantity in each locality, such as pots, pans, bowls and dishes, beds, wardrobes and other common articles of small value. Such furniture items and personal belongings as television set, refrigerator, air conditioner, washing machine, computer and gold, silver and gem jewelries (excluding wedding rings) shall still be distrained to ensure implementation of administrative decisions.

b.5. Worshiping articles, relics, orders, medals and certificates of merit.

4. Property shall be distrained in the following order:

a/ Distraining property being imports transported en route to Vietnam, having arrived at the border gate of importation or having transported to a warehouse or storing yard of the person subject to enforcement (excluding goods being materials and raw materials for export production, humanitarian goods, imported goods for use as contributed investment capital, and easy-to-deteriorate agricultural goods and food).

b/ Distraining the following property when having sufficient information and conditions:

b.1. Distraining goods being transported en route or put on sale at the shop of the person subject to enforcement:

b.2. Distraining other property at the request of the person subject to enforcement:

b.3. Distraining other property.

5. Verification of information on property

a/ Upon obtaining information on goods of the person subject to enforcement being transported en route or having arrived at a border gate, the district-level Customs Department of the border gate of importation shall immediately notify it to the person competent to issue enforcement decisions.

b/ The person competent to issue enforcement decisions shall organize direct verification or request the person subject to enforcement to provide documents of title of the property he/ she currently owns and its value.

6. Decision on enforcement by property distraint

a/ A decision on enforcement by property distraint must indicate the date of issuance; grounds for issuance; full name, post (position) and managing unit of the issuer; full name, residence and head office of the person subject to property distraint; the amount of money to be distrained; place of distraint. The decision must bear the signature of the issuer and the seal of the issuing agency;

b/ A decision on enforcement by property distraint shall be sent to the person subject to property distraint, the People's Committee of the commune where he/she resides or the organization is based or to his/her working agency 5 (five) working days before the date of enforcement, except when the decision-issuing agency has grounds to believe that the sending of the decision in advance will cause difficulties to the enforcement.

7. Procedures for implementing property distraint

a/ Property distraint must be carried out at daytime and during working hours applicable in the locality where property is distrained, except for cases in which the person subject to enforcement is detected to disperse or destroy his/her property or shirk implementing the enforcement decision and the person competent to issue enforcement decisions may immediately organize property distraint in order to stop the above acts of the person subject to enforcement;

b/ The person issuing the enforcement decision or the person assigned to implement the enforcement decision shall take charge of the distraint;

c/ Before issuing a property distraint decision, the person competent to issue enforcement decisions shall request the property ownership or use right registry to provide information on the right of the person subject to enforcement to own or use the property; request the security transaction registry to provide information on whether the to be-distrained property is currently used to secure the performance of an obligation of the person subject to enforcement toward a party or whether the property managed or used by the person subject to enforcement is a financially leased or purchased. Within 5 (five) working days, the above agencies shall send written replies to the person competent to issue enforcement decisions on the requested information:

d/ Present to the property distraint must be the individual subject to enforcement or an adult member of his/her family or a lawful representative of the organization subject to property distraint, a representative of the local administration and a witness.

If the individual subject to property distraint or an adult member of his/her family is intentionally absent, his/her property shall still be distrained in the presence of a representative of the local administration and a witness:

c/ Individuals or organizations subject to enforcement may request which property to be distrained first and the person assigned to take charge of the distraint shall accept such request if it does not affect the distraint. If individuals or organizations subject to enforcement make no such request, property under personal ownership shall be distrained first;

f/ Property under co-ownership of the individual subject to enforcement and other persons may only be distrained if such individual has not personal property or his/her personal property is insufficient for implementing the enforcement decision. If there is a dispute over such property, it shall still be distrained but explanation must be given to its co-owners on their right to initiate a lawsuit according to civil procedures.

The distraining agency shall publicly notify the time and place of distraint to co-owners. Past 3 (three) months from the date of distraint, if no lawsuit is filed, the distrained property shall be auctioned under the law on property auction:

g/ The land use rights, houses and offices of a person subject to enforcement may be distrained only after all other properties have been distrained but they are not enough for implementing the enforcement decision:

h/ Property of a person subject to enforcement shall be distrained only to sufficiently implement the enforcement decision and cover enforcement expenses. It that person has only a sole property larger than the obligation to implement the enforcement decision which is indivisible or will significantly decrease in value if divided, the distraining agency may still distrain it to secure the implementation of the enforcement decision:

i/ In case of distraining a property being a locked house or a locked or packaged article, the organization implementing the enforcement decision shall request the person subject to enforcement or currently using and managing that property to unlock or unpack it. If such person refuses to unlock or is intentionally absent, the organization implementing the enforcement decision shall unlock or unpack the property in the presence of a representative of the local administration and witnesses, check and make a list of articles therein and distrain them according to law. then make a written record thereon.

If the person subject to enforcement or person with related rights and obligations is serving an imprisonment sentence, the person in charge of implementing the enforcement decision shall notify decisions and notices of the implementation of the enforcement decision to these persons through prison wardens. Those who are in prison may authorize other persons to exercise the rights and performs the obligations related to the implementation of enforcement decisions;

j/ For cases of distraining property subject to ownership or use right registration, when issuing a decision on enforcement by property distraint, the person in charge of implementing the enforcement decision shall immediately notify the following agencies of the property distraint:

j.1. The land use right registry, the agency competent to register assets attached to land in case of distraining land use rights and assets attached to land:

j.2. The Vietnam Aviation Administration, in case of distraining aircraft:

The regional ship and crew registration department, in case of distraining seagoing ships;

j.3. The Road Traffic Police Department or Division, in case of distraining road motor vehicles;

j.4. Other agencies competent to register ownership and use rights as prescribed by law.

k/ From the time of receiving a notice of property distraint, the agency with which the ownership or use rights of the property in question has been registered may not register its transfer, unless otherwise provided for by law.

Within 3 (three) working days after the distrained property is released or the distrained property is auctioned or assigned for implementation of the enforcement decision, the organization implementing the enforcement decision shall notify it to the agency with which the ownership or use rights of the property in question has been registered;

1/ Within 30 (thirty) days from the date of property distraint, if the person subject to enforcement fails to fully pay tax debts and fines, the customs office may auction the distrained property for full collection of tax debts and fines.

8. Written records on property distraint

a/ Property distraint shall be recorded in writing. Such a written record must indicate the time and place of distraint; full name and post of the person in charge of distraint; representative of the organizations subject to property distraint, individual whose property is distrained or his/ her lawful representative: witness: representative of the local administration (or the working agency of the individual subject to enforcement), representatives of related organizations and agencies: description, name, state and characteristics of each property distrained, certificate of ownership or the right to use the property (for types of property subject to ownership or use right registration);

b/ The person in charge of distraint: representative of the organization subject to property distraint; individual whose property is distrained or his/her lawful representative; witness; representative of the local administration (or the working agency of the individual subject to enforcement), representatives of related organizations and agencies shall sign the written record. In case any of the above persons is absent or refuses to sign the written record, such must be written in the record with the reason therefor:

c/ A written record on distraint shall be made in 2 (two) copies, one to be kept by the agency issuing the enforcement decision and the other given to the individual who property is distrained or representative of the organization subject to distraint immediately after the written record is completed.

9. Delivery of distrained property for preservation

a/ The person in charge of the distraint shall select any of the following forms of preservation of distrained property:

a.1. Delivering the distrained property to the person subject to enforcement or his/her relative or the person currently managing and using such property for preservation:

a.2. Delivering the distrained property to one of its co-owners for preservation, if it is under joint ownership:

a.3. If the person subject to enforcement or his/her relative or the person currently managing and using such property refuses to receive the distrained property for preservation or there are signs of dispersing or destroying the property or obstructing the implementation of the enforcement decision, on a case-by-case basis the distrained property shall be assigned to an organization or individuals with preservation conditions:

a.4. The person in charge of the distraint shall store and preserve dossiers and papers on the right to own and use property and ensure their safety in the process of enforcement.

b/ Property being gold, silver, precious metals, gems and foreign currency shall be delivered to the state treasury for management; weapons, explosives, radioactive substances, military technical equipment and other industrial explosive materials, support tools, articles of historical and cultural value, national treasures, antiques, and precious and rare forest products shall be temporarily handed over to specialized state management agencies for management;

c/ When delivering a distrained property for preservation, the person in charge of the distraint shall make a written record indicating the date of delivery: full names of the person in charge of enforcing the enforcement decision, the individual or representative of the organization subject to enforcement, the person assigned to preserve the property, the witness of the delivery, quantity, state (quality) of the property, and rights and obligations of the person assigned to preserve the property:

The person in charge of distraint and person assigned to preserve the property, the individual or representative of the organization subject to enforcement, and the witness shall sign the written record. In case any of these persons is absent or refuses to sign the written record, such must be written in the record with the reason therefor.

The written record shall be handed to the person assigned to preserve the property, the individual or representative of the organization subject to enforcement, the witness and the person in charge of distraint, one copy each.

d/ The person assigned to preserve the probity shall be paid for reasonable preservation expenses, except those persons specified at Point a. Clause 1. Article 54 of Decree No. 98/2007/ND-CP of June 7, 2007;

e/ The person assigned to preserve the property who causes damage to. fraudulently exchange, loses or destroys it shall pay compensation and may, depending on the nature and seriousness of violation, be administratively handled or examined for penal liability under the criminal law.

10. Valuation of distrained property

a/ The valuation of distrained property shall be conducted in the house of the individual or the office of the organization subject to distraint or the place of storage of the distrained property (except for cases in which a valuation council is required to be set up):

b/ When distraining property, the person in charge of implementing the enforcement decision shall temporarily calculate the value intended to be distrained so as to distrain the property of a value sufficient for paying the payable amount and enforcement expenses. He/she shall base himself/herself on the market value and concurrently consult functional agencies and related parties to temporarily calculate the value of the distrained property;

After the distraint, if the related parties can reach agreement on the value of the distrained property, the person in charge of implementing the enforcement decision shall make a written record clearly stating this agreement and have it signed by the related parties.

c/ A distrained property under co-ownership shall be" valued according to the agreement between the person in charge of implementing the enforcement decision and the representative of the organization or individual subject to enforcement and other co-owner(s). The time limit for the parties to reach agreement on the property value is 5 (five) working days after the date the property is distrained;

For a distrained property valued at under VND 500,000 or perishable, if the parties cannot reach agreement on its value, the person issuing the enforcement decision shall value it.

d/ If the distrained property is valued at VND 500,000 or more, difficult to value or the related parties cannot reach agreement on its value, within 15 (fifteen) days after the date the property is distrained, the person issuing the enforcement decision shall request a competent agency to set up a council to value it;

Within 2 (two) days after completing the procedures for verifying information on a distrained property, the agency directly organizing the enforcement shall make a written request to the chairperson of the provincial-level People's Committee of the locality where the enforcement decision is implemented or the head office of the organization subject to enforcement is based or the individual subject to enforcement permanently resides to set up a valuation council;

The person issuing the enforcement decision shall act as head of the council and representatives of the finance agency and related specialized agencies as council members. The person in charge of implementing the enforcement decision may hire or request assessment of the property value. When requested by the person in charge of implementing the enforcement decision, the specialized agencies shall appoint qualified persons to participate in the valuation. Members of a valuation council must be representatives of competent specialized management agencies with professional and technical expertise about the re-valued property. If the to be-valued property is a house, there must be representatives of the house and land management agency and construction management agency in the valuation council;

Within 7 (seven) working days after the date of establishment, the valuation council shall conduct valuation. The individual or the representative of the organization with the distrained property may give opinions in the process of valuation but the valuation council has the right to make decision on the property's value.

The valuation council shall base itself on the market value at the time of valuation and expertise opinions of property assessment agencies and organizations to determine the property value. It shall decide on the property value by majority; if the numbers of opinions for and against are equal, the side sharing the opinion of the head of the council will be the ground for determining the reserve price of the property for sale. Members of the valuation council have the right to reserve their opinions and propose the competent person issuing the enforcement decision to re-consider the valuation. Types of property with prices uniformly managed by the State shall be valued based on their state-prescribed prices;

e/ Property valuation shall be recorded in writing. A written record must indicate the time and place of valuation: participants in the valuation and the name and value of the property, and contain the signatures of the participants in the valuation and property owner.

11. Transfer of distrained property for auction

a/ For a distrained property to be put up for auction, based on its value determined under Clause 10 above, within 30 (thirty) days after the date of issuance of the distraint decision, the person in charge of enforcement shall sign a contract on authorization of auction with one of the following organizations with the auctioning function for auctioning the property:

a.1. If the distrained property is valued at under VND 10,000,000, the person in charge of enforcement shall sign a contract on authorization of auction with a district-level finance agency;

a.2. If the distrained property is valued at VND 10,000.000 or more, the person in charge of enforcement shall sign a contract on authorization of auction with the provincial-level auction service center of the place where exists the property.

b/ The reserve price for an auctioned property is its value determined upon distraint under the guidance of Clause 10 of this Article:

c/ The delivery of distrained property to agencies responsible for auction shall be recorded in writing. A written record must indicate the date of delivery; deliverer and recipient; signatures of deliverer and recipient; quantity and state of property. A dossier of delivery of distrained property to an agency responsible for auction comprises: decision on enforcement by distraint; papers and documents related to lawful ownership and use right (if any); property valuation document and written record of delivery of property;

d/ If the distrained property is bulky goods or in large quantity and the provincial-level property auction center or district-level finance agency has no place for storage, after completing the delivery procedure, a property preservation contract may be signed with the place where such property is currently stored. Expenses for the performance of the preservation contract shall be paid with proceeds from property auction;

e/ When the distrained property has been delivered to an agency responsible for auction, the procedures for its auction comply with current provisions of law on property auction;

f/ For property under co-ownership put up for auction, co-owners will have the pre-emptive right to buy it;

g/ If the proceeds from property auction exceed the sum of money stated in the administrative decision and enforcement expenses, within 10 (ten) days from the date of completion of the auction, the agency implementing the measure of enforcement by property distraint and auction shall carry out procedures for returning the difference to the person subject to enforcement.

12. Transfer of property ownership

a/ Those who buy distrained property have their right to own or use such property recognized and protected by law;

b/ Competent state agencies shall complete procedures for transferring ownership or use right to buyers under law:

c/ A dossier of transfer of ownership or use right comprises:

c.1. A copy of the decision on administrative enforcement by property distraint for auction;

c.2. The written record on the property auction;

c.3. Other papers related to the property (if any).

13. Proceeds from the auction of distrained property or property of persons subject of enforcement collected from other individuals and organizations holding such property shall be handled in the following order:

a/ Paying expenses for enforcement, auction of distrained property or property collected from other individuals and organizations holding such property;

b/ Remitting a sum of money equal to the tax amount and fine indicated in the enforcement decision into the state budget revenue account or custody account of the customs office opened at the state treasury;

c/ Returning the remainder (if any) to the person subject to enforcement.

Article 42. Enforcement measure of collecting money and property of persons subject to enforcement which are held by other organizations and individuals

1. This measure is applied only when customs offices cannot apply the enforcement measures specified in Clauses 1, 2 and 3, Article 43 of the Decree or have applied them but still fail to fully collect tax debts and fines and they have grounds to ascertain that a third party owes debts to or hold money and property of persons subject to enforcement.

2. Persons holding property of organizations or individuals subject to enforcement referred to in Clause 4. Article 43 of the Decree include:

a/ Individuals, households, organizations (such as securities trading centers, securities companies, trade partners) authorized by persons subject to enforcement to hold their property:

b/ Individuals, households and organizations owning debts to persons subject to enforcement:

c/ Individuals and organizations that are parties to securities transactions or carry out procedures for property handling under law;

d/ Domestic tax agencies currently holding value added tax, money and other property refundable to persons subject to enforcement;

e/ Other agencies and organizations (forwarders, bonded warehouses, entrusted importers) currently holding imports of persons subject to enforcement.

3. Principles of collection of money and other property of persons subject to enforcement from third parties

a/ Third parties owing due debts to persons subject to enforcement or holding money and other property of these persons shall pay tax debts and fines for these persons:

b/ If money and other property of persons subject to enforcement currently held by a third party are objects of security transactions or fall into a case of bankruptcy, the collection of money and property from a third party complies with law;

c/ Money remitted by a third party into the state budget revenue account or custody account of the customs office opened at the state treasury for the person subject to enforcement shall be determined as money paid for the person subject to enforcement.

Based on documents on collection of monej and property from a third party, the agency in charge of enforcement shall notify persons subject to enforcement and related parties thereof.

4. Responsibilities of third parties owing debts to or holding money and other property of persons subject to enforcement

a/ To provide customs offices with information on debts owed to or money and other property of persons subject to enforcement they are holding, clearly stating the amount of money, debt payment deadline, kinds, quantities and state of property;

b/ Upon receiving a written request of a competent person, to refrain from returning money and other property to persons subject to enforcement before remitting money into the state budget revenue account or custody account of the customs office opened at the state treasury or delivering the property to the customs office for carrying out auction procedures;

c/ If unable to satisfy the request of the customs office, to send a written explanation to the customs office within 5 (five) working days after the date of receipt of such request;

d/ Organizations and individuals owing debts to holding money and other property of persons subject to enforcement that fail to pay tax money subject to enforcement within 15 (fifteen) days after the date of receipt of a request of the customs office shall be regarded as owing tax debts to the .State and subjected to enforcement measures prescribed in Article 43 of the Decree.

Article 43. Other enforcement measures

1. Enforcement by suspending customs clearance for imports

a/ This measure is applied only when customs offices cannot apply the measures specified in Clauses 1, 3 and 4, Article 43 of the Decree or have applied them but still fail to fully collect tax debts and fines;

b/ Persons competent to decide on enforcement shall issue enforcement decisions to persons subject to enforcement and post them on the customs information network at least 5 (five) working days before applying the measure of suspending customs clearance for imports;

c/ An enforcement decision must indicate the date of issuance: its number and legal grounds for issuance: reason for enforcement, full name, post and managing unit of the issuer; full name and address of the person subject to enforcement unpaid tax amounts and fines detailed by declaration form and case; total amount of money to be collected; name and address of and account number at the state treasury; time of implemen­tation; signature of the issuer and seal of the issuing agency;

d/ Suspension of customs clearance must comply with law. The temporary termination of the measure of suspension of customs clearance for imports in cases permitted by law must ensure that no new debts will arise and current tax debts and fines are guaranteed by a credit institution or another organization operating under the Law on Credit Institutions.

2. Enforcement by withdrawing tax identification numbers, suspending use of invoices; revoking business registration certificates or establishment and operation or practice licenses

When applying this measure to taxpayers, competent customs offices shall:

a/ Notify the person subject to enforcement at least 5 (five) working days before applying this measure:

b/ Send a written request to a competent state agency for withdrawing the tax identification number, suspending use of invoices; revoking the business registration certificate or establishment and operation or practice license.

Within 10 (ten) days after the date of receipt of the customs office's notice, the competent state agency shall issue a decision to withdraw the tax identification number, suspend use of invoices; revoke the business registration certificate or establishment and operation or practice license. When failing to do so. it shall notify the reason to the customs office.

3. Enforcement for confiscating evidence materials and means used in administrative violations; enforcement for implementing remedies to overcome consequences caused by administrative violations.

The procedures and order for implementing the measures of enforcement for confiscating evidence materials and means used in administrative violations and enforcement for implementing remedies to overcome consequences caused by administrative violations comply with the provisions of Section D, Chapter II, and Chapter III of Decree No. 37/ 2005/ND-CP of March 18, 2005.

Article 44. Enforcement expenses

1. Expenses include

a/ Expenses for persons implementing the enforcement decision;

b/ Expenses for hiring equipment for dismantling and transporting articles and property;

c/ Expenses for protection of enforcement: Expenses for persons directly taking part in protecting the enforcement (person issuing the enforcement decision, security police, health workers, implementers of the enforcement decision, representative of the local administration and social organizations, etc.), expenses for purchasing fuel, hiring security equipment and medical equipment serving the implementation of the enforcement decision;

d/ Expenses for fire and explosion prevention and fighting (if any): Hiring fire engines, fire fighting equipment, hiring bomb and mine sweeping and other necessary fire and explosive prevention and fighting;

e/ Expenses for hiring storage or preservation of distrained property:

f/ Expenses for property evaluation and distraint: remuneration for valuation council members, property survey expenses (if any), expenses for renting venues and equipment for property auction, expenses for property re­valuation; expenses for publishing auction notices on the mass media;

g/ Other actually arising expenses for the implementation of the enforcement decision (if any).

2. Expense levels

- Expenses for hiring property storage or preservation; property survey, renting of venues and equipment for property auction; publishing of auction notices on the mass media; hiring transportation of articles and property for implementing the enforcement decision shall be paid based on lawful and valid contracts, invoices and documents according to regulations;

- Other expenses shall be paid at levels under common regulations of the State.

If there are no state regulations on expense levels, persons organizing enforcement shall decide on expense levels and take responsibility for their decisions.

3. Funding sources for paying expenses for implementation of enforcement decisions

Expenses for implementation of enforcement decisions shall be incurred by persons subject to enforcement.

If enforcement expenses are incurred by persons subject to enforcement but customs offices cannot yet collect any money, customs offices may pay for such expenses in advance with their operational funds and get refunds right after money is collected from persons subject to administrative enforcement. The advance level must not exceed VND 30 (thirty) million. For cases in which the level of enforcement expense is higher than the permitted advanced amount, persons issuing enforcement decisions shall report them to superior customs offices for consideration and settlement on a case-by-case basis.

4. Exemption from and reduction of enforcement expenses

a/ Individuals subject to enforcement may be considered for exemption from and reduction of enforcement expenses in one of the following cases:

- Having financial difficulties. Individuals with financial difficulties are those who have incomes insufficient for ensuring minimum living standards of a normal life or fall into a prolonged exceptionally difficult economic plight caused by natural disaster or fire. The minimum income level is that not liable to the income tax on high-income earners.

A decision on exemption from or reduction of enforcement expenses shall be cancelled when the person subject to enforcement is detected to disperse or hide his/her money and property in order to shirk the verification of practical conditions for enforcement.

- Their families are eligible for social policy or have made meritorious services to the revolution;

- They are supportless lonely persons, persons with disabilities, or suffer prolonged illnesses.

b/ Procedures for requesting exemption from or reduction of enforcement expenses:

In order to enjoy exemption from or reduction of enforcement expenses, individuals shall file written requests for exemption from or reduction of enforcement expenses and have them certified by the commune-level People's Committee of the place whether they reside or the head of the agency or organization they are working for. In addition, the procedures include:

- For a person subject to enforcement facing financial difficulties caused by natural disaster or fire, certification of the commune-level People's Committee of the place where he/she resides or the head of the agency or organization he/she is working for is required.

c/ Levels of exemption from or reduction of enforcement expenses:

- For individuals subject to enforcement who have paid part of enforcement expenses but then fall into a prolonged exceptionally difficult economic plight caused by natural disaster or fire, shall be considered for non-payment of remaining enforcement expenses;

- Individuals referred to at Point a, Clause 4 of this Section may enjoy 50% (fifty per cent) reduction of payable enforcement expenses.

d/ Persons competent to issue enforcement decisions shall receive written requests, consider and decide on exemption from and reduction of enforcement expenses.

In case the agency issuing the enforcement decision decides on exemption from or reduction of enforcement expenses, these expenses shall be covered with its operational funds.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 45. Implementation responsibilities

1. The General Director of Customs shall organize and direct the handling of administrative violations and enforcement of administrative decisions in the customs domain: inspect the observance of law and the settlement of complaints to ensure uniform implementation in the whole sector in accordance with law.

2. Immediate superiors of persons with sanctioning competence shall organize inspection of the handling of administrative violations by their subordinates.

Directors of provincial-level Customs Departments, the director of the Anti-Smuggling Investigation Department and the director of the Post-Customs Clearance Inspection Department under the General Department of Customs shall closely inspect the handling of administrative violations in their respective units.

At district-level Customs Departments, control teams of provincial-level Customs Departments shall appoint their officers to specialize in monitoring, guiding and inspecting operation teams in the sanctioning of administrative violations.

3. If customs officers competent to sanction and apply measures to prevent administrative violations and ensure the sanctioning of administrative violations and enforcement of administrative decisions or assigned to give advice to persons competent to sanction administrative violations or enforce administrative decisions in the customs domain commit law-breaking, irresponsible, harassing or self-seeking acts shall, depending on the severity of their violation, be strictly handled under law; if causing material damage to individuals and organizations, they shall pay compensation therefor.

4. Printed forms used in the sanctioning of administrative violations, application of measures to prevent administrative violations and ensure the handling of administrative violations and enforce administrative decisions in the customs domain are provided in the appendices to this Circular (notprinted herein). The General Director of Customs shall guide the uniform use of printed forms in the entire sector.

Article 46. Effect

1. This Circular takes effect 45 days from the date of its signing. To annul the Minister of Finance's Circular No. 62/2007/TT-BTC of June 14, 2007, guiding the Government's Decree No. 97/2007/ND-CP of June 7, 2007, stipulating the handling of administrative violations and enforcement of administrative decisions in the customs domain.

2. Any problems arising in the course of implementation should be promptly reported to the Ministry of Finance for study and settlement.-