Thông tư liên tịch 52/2002/TTLT-BTC-BCN

JOINT CIRCULAR

AMENDING AND SUPPLEMENTING JOINT CIRCULAR No. 92/TTLT/BTC-BCN-TCHQ OF NOVEMBER 20, 2001 OF THE FINANCE MINISTRY, THE INDUSTRY MINISTRY AND THE GENERAL DEPARTMENT OF CUSTOMS GUIDING THE REALIZATION OF THE TAX PREFERENCE POLICY FOR THE MANUFACTURE OF MOTORCYCLES AND THEIR ENGINES

Pursuant to the Prime Minister’s Decision No. 38/2002/QD-TTg of March 14, 2002 on management of the manufacture, assembly and import of motorcycle components; his opinions in the Government Office’s Official Dispatch No. 2667/VPCP-KTTH of May 21, 2002 on the implementation of this Decision;
The Finance Ministry and the Industry Ministry, after reaching agreement with the General Department of Customs, hereby jointly guide the amendment and supplementation of the tax preference policy for the manufacture and assembly of motorcycles and their engines prescribed in Joint Circular No. 92/TTLT-BTC-BCN-TCHQ of November 20, 2001 of the Finance Ministry, the Industry Ministry and the General Department of Customs as follows:

1. To amend and supplement Section II of Circular No. 92/TTLT/BTC-BCN-TCHQ as follows:

To replace the provision at the sixth em rule, Section II, with the following new one:

"- Investment in the manufacture of motorcycle details, detail assemblies and/or parts means that for the manufacture thereof the enterprises invest their own capital and enter into joint ventures on a contractual basis involving capital contribution and profit sharing with other enterprises (domestic or foreign-invested).

Where an enterprise enters into a joint venture with another one, it must ensure the following conditions:

+ Contributing at least 30% of the legal capital, for joint ventures taking the form of newly-established enterprises, or at least 30% of the contract-performing capital, for joint ventures on a contractual basis;

In cases of capital contribution on a contractual basis, the partners signing contracts with the motorcycle-manufacturing and/or -assembling enterprises must be units that manufacture motorcycle components. The motorcycle-manufacturing and/or -assembling enterprises can contribute capital in the forms of assets and/or cash. The contributed assets must be equipment and technologies directly related to the manufacture of motorcycle details, detail assemblies and parts registered by the enterprises. The contributed cash amounts must be evidenced with bank transfer vouchers. All capital-contributing activities must be clearly reflected on the accounting books.

+ Products turned out from joint-venture activities must be enough for the quantities of motorcycles made or assembled by the enterprises.

2. Section III of Circular No. 92/TTLT/BTC-BCN-TCHQ is amended and supplemented as follows:

2.1. To replace Point 1 with the following new one:

"1. The motorcycle-manufacturing and/or-assembling enterprise must invest in the manufacture of motorcycle details, detail assemblies and/or parts so as to attain in 2002 the minimum localization rate of 20%, which is calculated for the whole product at the localization rates specified in Appendices 2, 3, 4 and 5 to Circular No. 92/TTLT-BTC-BCN-TCHQ of November 20, 2001. Such investment must be made in the manufacture of components belonging to the major groups of parts such as engines, frames, transmission components

Details, detail assemblies and parts on the lists of common domestically-made motorcycle details, detail assemblies and parts, which are prescribed in Appendix 08 to Circular No. 92/TTLT-BTC-BCN-TCHQ of November 20, 2001, shall not be used for calculating the above-said minimum localization rate.

For enterprises manufacturing and/or assembling motorcycle engines and those manufacturing and/or assembling motorcycles, which have made investment in the manufacture and/or assembly of engines, they shall enjoy the tax preference policy according to the rate of localization of engines if their investment in the manufacture (on their own and through joint ventures) of engine details secures the attainment of the minimum localization rate of 20%, which is calculated for the whole engine of which they manufacture be themselves at least one complete major detail or detail assembly as prescribed by the Industry Ministry. The aforesaid percentage of 20% shall be calculated on the basis of the localization rates prescribed in Appendix 06 issued together with this Circular (which replaces Appendix 6 issued together with Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001).

For motorcycle-manufacturing and/or -assembling enterprises which have invested in the manufacture of engine details, detail assemblies and parts for assembly in motorcycles manufactured and/or assembled by the enterprises themselves, the quantities of engine details, detail assemblies and parts manufactured by the enterprises shall be converted for calculation into the localization rate of motorcycles, even if the total percentage of these details, detail assemblies and parts fails to reach 20% calculated for the whole engine.

For the motorcycle-manufacturing and/or -assembling enterprises which buy engines manufactured or assembled by other units, if the localization rate of engines invested and manufactured by these units reaches 20% or higher, the enterprises buying new engines can convert them for calculation into the localization rates of motorcycle products they manufacture or assemble.

For motorcycles in complete units, motorcycle details, detail assemblies and parts manufactured or assembled in Vietnam, the following must be complied with:

- Announcement of goods quality standards; details, detail assemblies and parts on the list of goods subject to application of Vietnam standards or branch standards must have their quality announced to be compatible with the standards under the provisions of the Goods Quality Ordinance.

- Goods labeling under the guidance in the Industry Ministry’s Circular No. 05/2001/TT-BCN of June 18, 2001.

2.2. To replace Point 5 with the following new one:

" 5. Directly importing details, detail assemblies and parts; directly buying details, detail assemblies and parts from the domestic manufacturing units or their agents for manufacture and/or assembly; Manufacturing and/or assembling products at the registered sites.

Agents of the manufacturing units are agents selling motorcycle details, detail assemblies and parts at the prices fixed by the manufacturing units and enjoy commissions paid by the latter. The principals and the agents must sign agency contracts according to the provisions of the Commercial Law.

Where the enterprises having registered for implementation of the tax preference policy authorize or entrust the import to other enterprises, they shall not be entitled to the tax preference policy."

2.3. To replace Point 6 with the following new one:

"6. Making payment of the whole value of imported goods lots entirely via bank by the mode of payment through irrevocable letters of credit (L/C)."

2.4. To add the following Point 7:

"7. The enterprises must ensure the standards of motorcycle-manufacturing and/or assembling enterprises, as certified by the Ministry of Industry."

3. To amend and supplement Section IV of Circular No. 92/TTLT/BTC-BCN-TCHQ as follows:

To replace Point 4 with the following new one:

"4. For cases where the enterprises have invested and manufactured by themselves a number of details in the detail assemblies, whose localization rates are specified in Appendix 2, 3, 4, 5 or 6, issued together with Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001, they may declare by themselves the localization rates of such details but must ensure that the rates of the values of the manufactured details are compatible with the values of the detail assemblies and that the localization rates of the details must not exceed the localization rates prescribed for such detail assemblies.

For example: According to the appendix, the localization rate prescribed for rear shock absorbers is 1.8%. An enterprise has invested and manufactured springs by itself. The value of such a spring accounts for 20% of the value of the rear shock absorber. In this case, the enterprise may declare the localization rate of the rear shock absorber’s spring manufactured by itself as follows: 1.8% x 20% = 0.36%. Where an enterprise can manufacture the whole rear shock absorber, it shall apply the localization rate of 1.8%.

4. To amend and supplement Section VII of Circular No. 92/TTLT/BTC-BCN-TCHQ as follows:

4.1. To replace Point 1 with the following new one:

"1. Procedures and dossiers for registration of implementation of the tax preference policy:

In order to enjoy the tax preference policy, the motorcycle-manufacturing and/or -assembling enterprises must submit to the Ministry of Finance four sets of dossier for registration of implementation of the tax preference policy according to the localization rate for each type of motorcycles or engines according to the following regulations:

1.1. The written declaration and registration of implementation of the tax preference policy for each specific mark of motorcycles, as guided in Appendix 1 issued together with Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001.

The enterprises manufacturing and/or assembling motorcycles and engines shall base themselves on the percentage (%) of each detail, detail assembly or part… of motorcycles or engines of different types prescribed in Appendices 2, 3, 4, 5 and 6 and the guidance in Sections IV and VI of Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001 and in this Circular to make declaration and registration.

If, in the course of implementation, the enterprises manufacturing and/or assembling motorcycles and/or engines do not buy details, detail assemblies and parts of the units already declared in Appendix 01- form 1B (issued together with Circular No. 92/TTLT-BTC-BCN-TCHQ of November 20, 2001) and instead buy them from other manufacturing units, before buying or within 15 days after buying them (counted from the date the selling units issue sale invoices), they must send written reports to the Finance Ministry, clearly explaining the reasons therefor and the manufacturing capacity of the new manufacturing units. No more than 7 units can be changed as compared with the list of registered units.

1.2. The copy (stamped for certification as true copy by the enterprise) of the written tax payment registration certificate of the motorcycle-manufacturing and-assembling enterprise. For joint-venture partners or units selling motorcycle details, detail assemblies and parts, the enterprises must present the written certifications by the tax management offices of the lists of motorcycle details, detail assemblies and parts already manufactured and consumed in the year or quarter preceding the time of registration of the implementation of the tax preference policy (according to a set form).

1.3. The copy of the enterprise’s financial statement of the quarter preceding the time of registration of the implementation of the tax preference policy. Where the enterprises do business in many domains, they must additionally submit the lists of the balances on accounts 211, 222 and 230, clearly indicating the assets related to motorcycle manufacturing and/or assembling activities.

1.4. The dossiers and vouchers related to the enterprises’ direct investments in the manufacture of accessories and components include: the list, which is attached with the copies (certified as true copies by the enterprises), of vouchers on the purchase of machinery and equipment for investment in the manufacture of motorcycle details, detail assemblies and parts (invoices for their purchase from domestic enterprises; import contracts, import declarations, vouchers on the payment for import goods); clear declarations of the types of machinery and equipment already purchased to manufacture which types of details, detail assemblies and parts; actual manufacturing capacity.

1.5. Contracts for joint venture or cooperation on manufacturing details, detail assemblies and parts, and vouchers for the via-bank transfer of contributed cash (if capital contribution is made in cash), or vouchers related to the contribution of capital in kind. The quantity and value of the joint-venture partners’ machinery and equipment directly related to the joint-venture partners’ manufacture of motorcycle details, detail assemblies and parts.

1.6. The written certifications by the National Industrial Property Office, under the Ministry of Science, Technology and Environment, of the industrial designs, copyright, and/or trademarks of each particular product. The photos of the motorcycle designs and marks registered for implementation of the tax preference policy.

1.7. Written certifications by the Ministry of Industry that the enterprises fully meet the criteria of the motorcycle-manufacturing and/or -assembling enterprises (to be submitted only for the first-time registration of implementation of the tax-preference policy).

After 30 days as from the date of receiving the complete dossiers, the Ministry of Finance shall, after consulting with the inter-branch working team, issue written notices on the enterprises’ eligibility or ineligibility for implementation of the tax preference policy. Where the enterprises are eligible, it shall clearly notify them of the localization rates and import tax rates to be temporarily applied in the year and the maximum quantities of motorcycle component sets they are permitted to import for manufacturing and/or assembling motorcycles within a year (calculated according to the calendar year (hereinafter called combined capacity). The Ministry of Finance shall issue guiding documents on combined capacity.

Where an enterprise manufactures and/or assembles motorcycles for export, the quantity of motorcycle component sets imported for assembling export products shall not be limited.

For foreign-invested enterprises, if they fail to fully and properly fulfill their responsibilities and obligations prescribed in the investment licenses or to voluntarily apply the regulations on combined capacity, they may import component sets for manufacturing and/or assembling motorcycles only within the quantities based on the combined capacity.

The engine-manufacturing and/or -assembling enterprises and the motorcycle- manufacturing and/or -assembling enterprises, which have invested in the manufacture and/or assembly of engines for export and domestic consumption (even if the enterprises supply them for their own motorcycle manufacturing and/or assembling activities) may import engine component sets in unlimited quantities.

The Ministry of Finance shall affix its stamp on the four dossier sets to certify that the dossiers have been registered, then return one set to the enterprises for import procedure clearance, and send the stamped dossier sets and copies of its notice to:

- The Customs Department of the province or city where the enterprise is headquartered or the nearest Customs Department for registration of implementation of the tax preference policy.

- The Ministry of Industry for coordinated in management.

On the basis of the localization rates and the combined capacity notified by the Ministry of Finance and the import tax rates based on the localization rates prescribed for the products being motorcycles and/or engines, the customs offices shall inspect the tax calculation by the enterprises and collect import taxes. Within 30 (thirty) days after completing the customs procedures, the enterprises shall have to transfer the dossiers of the import goods lots (stamped for certification by the customs offices where the import procedures have been carried out) to the customs offices, where the enterprises have registered for the implementation of the tax preference policy, for the monitoring and settlement of tax according to the actual localization rates. Where the customs office detects that the enterprise imported goods different from those already declared by the enterprise or the importing enterprise fails to meet the conditions specified in Section III of Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001 and Point 2 of this Circular, it shall refuse to apply the localization rate-based import tax rate and shall retrospectively collect the import tax as prescribed in the current import tariff.

The enterprises shall have to declare fully the quantity of each imported detail, detail assembly or part, calculate the tax thereon and open import goods-monitoring registers according to the regulation of the customs offices. The General Department of Customs shall guide the local customs offices to monitor import goods in order to ensure both convenience for the enterprises and strict management, preventing import tax evasion or importing in excess of the combined capacity.

Where an enterprise imports details and parts of products many times, but only a number of types each time, it must make registration and final settlement with the customs office which processes the import procedures. Within 90 (ninety) days from the date of importation of the first goods lot, the enterprise must make final settlement with the customs office where the import procedures are carried out and transfer the dossier set to the customs office where it has registered for implementation of the tax preference policy. If, within the prescribed time limit, the enterprise fails to make the final settlement or does make the final settlement but the import goods are incompatible with the written registration, the customs office at the place where the goods are imported shall refuse to calculate and collect import tax according to the localization rates for subsequent import goods lots. Instead, it shall effect the retrospective collection of import tax at the rate prescribed in the import tax tariff for the already imported goods lots for which the final settlement has not yet been made.

In the course of implementation, if detecting any violations committed by enterprises, the provincial/municipal Customs Departments shall have to report them to the Ministry of Finance, the Ministry of Industry and the General Department of Customs."

4.2. To replace the provision in the third em rule, Point 2.2, Item 2 with the following:

"The list of quantities and percentages (%) of accessories… of each specific type (mark) of motorcycles, which the enterprises have actually imported; comparing them with the quantities and categories of the imported ones recorded in the import goods-monitoring books according to the regulations of the General Department of Customs; vouchers on payment for imported goods; comparing them with the combined capacity notified by the Ministry of Finance, determining the number of component sets imported in excess of the capacity."

4.3. To add to the end of the fourth em rule, Point 2.2, Item 2, the following content:

" When effecting the final settlement, the following details, detail assemblies and parts shall not be calculated into the products’ localization rates:

+ Details, detail assemblies and parts bought from units trading in components (except agents of manufacturing units).

+ Details, detail assemblies and parts bought from units both directly manufacturing and purchasing for resale components and accessories but failing to prove that the quantities of components and accessories they have purchased are manufactured by themselves.

+ Details, detail assemblies and parts bought from units other than the registered units but such is not reported to the Finance Ministry, or from more than seven units permitted to be changed from the registered ones.

+ Purchased components and accessories fail to ensure the quality standards and goods labeling as prescribed at Point 1, Section III of Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001, which is replaced at Point 2.1, Item 2 of this Circular.

5. To replace the entire Section VIII of Circular No. 92/TTLT-BTC-BCN-TCHQ with the following new contents:

"VIII. Handling of Violations:

1. Enterprises shall be subject to the retrospective collection of import tax at the import tax rates for motorbikes in complete units (engines in complete units) and fined under the provisions of the Law on Export Import and Tax Import if they commit one of the following violations:

1.1. They have invested in the manufacture of accessories but fail to attain the minimum localization rate of 20% from 2002 for motorcycles or their engines as prescribed at Point 1, Section III of Circular No. 92/TTLT/BTC-BCN-TCHQ of November 20, 2001, which is replaced at Point 2.1, Item 2 of this Circular.

1.2. They have registered that the details, detail assemblies and parts are home-made but they have, in fact, imported components and accessories or bought imported ones, have bought accessories and components without valid invoices and vouchers; have bought sale invoices so as to legalize those illegally purchased.

1.3. Other acts of violation and frauds in the declaration and final settlement of import tax according to the localization rates.

2. For the quantities of motorcycle component sets imported in excess of the combined capacity notified by the Ministry of Finance, apart from the retrospective collection of import tax and the fine prescribed at Point 1, the enterprises shall also have the excessively imported quantity of component sets deducted from the subsequent year’s combined capacity.

3. For enterprises which have registered to import motorcycle component sets for manufacturing and/or assembling motorcycles for export but they have not actually exported them, they shall, in addition to the retrospective collection of import tax, have to pay a fine five times the retrospectively collected tax amount.

4. Where enterprises sell the imported component sets or transfer them to other enterprises for assembling; organize the motorcycle assembly outside the registered locations, they shall, in addition to the retrospective collection of the import tax and the fine prescribed at Point 1, be ineligible to enjoy the tax preference policy under this Circular.

This Circular takes effect as from March 29, 2002, the date when the Prime Minister’s Decision No. 38/ 2002/QD-TTg of March 14, 2002 on management of the manufacture, assembly and import of motorcycle components took effect. All previous regulations contrary to this Circular shall be annulled.

Any problems arising in the course of implementation should be reported by organizations and individuals to the Ministry of Finance, the Ministry of Industry and the General Department of Customs ministries for timely settlement.

LIST OF PERCENTAGES OF ACCESSORIES AND DETAILS OF FOUR-STROKE PETROL ENGINES OF MOTORCYCLES OF BETWEEN 50CC AND 125CC
(Issued together with Joint Circular No. 52/2002/TTLT-BTC-BCN of June 4, 2002 of the Ministry of Finance and the Ministry of Industry)
(Appendix 6)