Thông tư 155/2016/TT-BTC

CIRCULAR

GUIDELINES FOR IMPLEMENTATION OF THE GOVERNMENT'S DECREE NO. 127/2013/ND-CP DATED OCTOBER 15, 2013 ON IMPOSITION OF ADMINISTRATIVE PENALTIES FOR CUSTOMS OFFENCES AND ENFORCEMENT OF CUSTOMS-RELATED ADMINISTRATIVE DECISIONS AND THE GOVERNMENT'S DECREE NO. 45/2016/ND-CP DATED MAY 26, 2016 ON AMENDMENTS TO DECREE NO. 127/2013/ND-CP

Pursuant to the Law on Government organization dated June 19, 2015;

Pursuant to the Law on Actions against administrative violations No. 15/2012/QH13 dated June 20, 2012;

Pursuant to the Law on Customs No. 54/2014/QH13 dated June 23, 2014;

Pursuant to the Law on Tax administration No. 78/2006/QH11 dated November 29, 2006 and the Law No. 21/2012/QH13 dated November 20, 2012 on amendments to the Law on Tax administration and the Law No. 71/2014/QH13 dated November 26, 2014 on amendments to tax laws;

Pursuant to the Law on Electronic transaction No. 51/2005/QH11 dated November 29, 2005;

Pursuant to the Government's Decree No. 81/2013/ND-CP dated July 19, 2013 providing guidelines for implementation the Law on Actions against administrative violations;

Pursuant to the Government's Decree No. 83/2013/ND-CP dated July 22, 2013 providing guidelines for implementation of the Law on Tax administration and the Law on amendments to the Law on Tax administration;

Pursuant to the Government's Decree No. 127/2013/ND-CP dated October 15, 2013 on imposition of customs-related administrative penalties and enforcement of administrative decisions (hereinafter referred to as “Decree No. 127/2013/ND-CP”) and the Government's Decree No. 45/2016/ND-CP dated May 26, 2016 (hereinafter referred to as “Decree No. 45/2016/ND-CP”) on amendments to Decree No. 127/2013/ND-CP;

Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 defining the functions, tasks, entitlements and organizational structure of the Ministry of Finance.

At the request of the Director of the General Department of Customs,

The Minister of Finance promulgates a Circular to provide guidelines for imposition of customs-related administrative penalties and enforcement of customs-related administrative decisions:

Chapter I

ADMINISTRATIVE PENALTIES FOR CUSTOMS OFFENCES

Section 1. GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This Chapter provides guidelines for implementation some Articles of Chapter 1 of Decree No. 127/2013/ND-CP which is amended by Decree No. 45/2016/ND-CP Decree No. 127/2013/ND-CP and Decree No. 45/2016/ND-CP are consolidated by document No 10/VBHN-BTC dated July 12, 2016 (hereinafter referred to as “the consolidated Decree”).

2. Regulated entities:

a) Customs officials; persons authorized to impose administrative penalties for customs offences;

b) Organizations and individuals that commit customs offences.

c) Other entities involved in the imposition administrative penalties for customs offences.

Article 2. Application of legislative documents and penalty imposition rules

1. The imposition of penalties, implementation of remedial measures and preventive measures, enforcement of administrative penalties for customs offences shall comply with the principles, procedures and authority specified in the Law on Actions against administrative violations No. 15/2012/QH13, the Law on Tax administration No. 78/2006/QH10, the Law No. 21/2012/QH13 on amendments to the Law on Tax administration, the Law No. 71/2014/QH13 on amendments to tax laws, the Government's Decree No. 81/2013/ND-CP the Government's Decree No. 115/2013/ND-CP the Government's Decree No. 83/2013/ND-CP Decree No. 127/2013/ND-CP and Decree No. 45/2016/ND-CP

2. The application for law provisions to imposition of administrative penalties for customs offences shall comply with the legislative documents specified in Article 156 of the Law on promulgation of legislative documents, Article 3 of the National Assembly’s Resolution 24/2012/QH13 dated June 20, 2012 on enforcement of the Law on Actions against administrative violations.

3. In cases where a customs offence is the result of another customs offence, only the heaviest penalty shall be imposed.

Article 3. Identification of first offence

The first offence specified in Clause 2 Article 2 of the consolidated Decree means an offence that is committed by an organization or an individual that has not incurred any administrative penalty for such offence or has incurred an administrative penalty for such offence but has not recommitted it within 6 months from the day on which the decision on warning issuance is implemented, or within 01 year from the day on which another decision on administrative penalty imposition is implemented or from the expiration date of the time limit for implementation of the decision on administrative penalty imposition.

Article 4. Cases in which administrative penalties for customs offences are not imposed

The cases in which administrative penalties for customs offences are not imposed as specified in Article 5 of this Decree comprise:

1. Where a good or vehicle is brought into Vietnam’s territory due to an unexpected event or force majeure event, it is required to inform the Sub-department of Customs or the coastguard or Customs Department of the nearest province or another competent authority defined by law within 03 days from the day on which the good or vehicle is brought into Vietnam.

If such authority is not informed, penalties may be imposed on a case-by-case basis according to Decree No. 127/2013/ND-CP which is amended by Decree No. 45/2016/ND-CP or otherwise handled as prescribed by law.

Identification of unexpected and force majeure events are specified in Clause 14 and Clause 14 Article 2 of the Law on Actions against administrative violations.

2. The notice of errors specified in Clause 2 Article 5 of the consolidated Decree shall be sent by the consignor, consignee or their legal representative. The notice must specify the causes and be sent to the Director of the Sub-department of Customs where the shipment is retained together with documents about the errors before the customs declaration is registered.

Where there are grounds for suspicion that there is collaboration between the consignor and the consignee and/or the shipper for the purpose of tax evasion or smuggling, the customs authority is entitled to reject the errors and handle the cases in accordance with law.  Such rejection shall be given in writing with explanation.

3. Provisions of Clause 3 Article 5 of the consolidated Decree shall be applied to the cases in which the declaration is adjusted as specified in Clause 1(a) and 1(b) Article 20 of Circular No. 38/2015/TT-BTC dated March 25, 2015.

4. In the cases specified in Clause 4, 5 and 7 Article 5 of the consolidated Decree:

a) Where there are grounds for determination that the offence is not penalizable when it is discovered, the person authorized to impose penalties shall only issue a record of document retention;

b) Where there are no sufficient grounds for determining whether an offence is penalizable, the customs official shall issue an administrative customs offence record; The person authorized to impose penalties specified in Clauses 2 to 5 Article 19 of the consolidated Decree, pursuant to applicable regulations of law and on the basis for the customs dossier, relevant documents and the administrative customs offence record, shall decide whether to impose penalties.

c) Tax offences related to exports or imports specified in Clause 4 Article 5 of the consolidated Decree comprise the offence specified in Clause 1 and Clause 2 Article 8, Clause 1 and Clause 2 Article 13 of the consolidated Decree.

5. Provisions of Clause 6 Article 5 of the consolidated Decree shall be applied to the cases in which declarant who follows export or import procedures for the first time declares the correct names of the goods that are exported or imported in reality but declares incorrect codes of goods according to Vietnam’s Export and Import Classification Nomenclature or declares incorrect rates of taxes thereon according to the export and import tariff schedule applicable at the time of registration of the customs declaration.

6. Penalties shall not be imposed in cases where a good or item is imported against regulations on customs declaration or against provisions of Article 14 of the consolidated Decree but customs procedures are followed by the postal service provider or express delivery service provider on behalf of its owner and there are no grounds for conclusion that the consignor, the consignee and the service provider collaborate to in committing fraud.

Article 5. Valuation of exhibits as the basis for determination of fine brackets

Where the value of an exhibit is the basis for determination of the fine bracket, the handling officer shall carry out valuation and take responsibility therefor.

Exhibit valuation:

1. If the exhibit is not confiscated, its value is its customs value, which is determined in accordance with regulations on customs valuation applicable at the time of issuance of the offence record; it the exhibit is foreign currency, the exchange rate shall be determined in accordance with Clause 3 Article 21 of the Government's Decree No. 08/2015/ND-CP.

2. If the exhibit is confiscated, its valuation shall depend on its category as specified in Clause 2 Article 60 of the Law on Actions against administrative violations.

If the basis specified in Clause 2 Article 60 of the Law on Actions against administrative violations cannot be applied, the handling officer shall, pursuant to Clause 3 Article 60 of the Law on Actions against administrative violations, issue a decision on impoundment of the exhibit, if necessary, and establish a valuation council to determine its value, which is the basis for determination of the fine bracket.

3. The handling officer shall issue a record on the exhibit valuation. Documents about the valuation shall be reflected in the dossier on the offence.

Article 6. Handling exhibits that are not confiscated

1. In cases where a good or vehicle is impounded without being confiscated, the person who decides the impoundment shall issue a decision to return it.

2. The good or vehicle returned shall follow customs procedures or exported/re-exported from Vietnam as prescribed; duties shall be paid if it is dutiable.

Section 2. IMPOSITION OF PENALTIES AND FINES

Article 7. Offences against time limits for completion of customs procedures and submission of tax documents specified in Article 6 of the consolidated Decree

1. Provisions of Clause 1(a) Article 6 of the consolidated Decree shall be applied to exports, imports, goods in transit, outbound vehicles, inbound vehicles and vehicles in transit.

2. Penalties for the offences specified in Clause 3(g), Clause 4(a) and (b); Clause 5 Article 6 of the consolidated Decree shall only be imposed if a time limit for re-import or re-export is specified in the license, customs declaration or another document defined by law.

3. The number of seats of a passenger vehicle specified in Clause 5 Article 6 of the consolidated Decree shall be determined according to its certificate of registration. Where the certificate of registration of a passenger vehicle does not specify its number of seats, such number shall be determined by physical inspection.

Article 8. Offences against regulations on customs declaration specified in Article 7 of the consolidated Decree

1. Penalties for failure to declare or incorrect declaration of goods on the list of humanitarian aid or grant aid certified by the Ministry of Finance or an authority authorized by the Ministry of Finance shall be imposed in accordance with Clause 1 Article 7 of the consolidated Decree.

In case of goods that are not on the list certified by the aforementioned authorities, penalties shall be imposed according to the offence as prescribed in Article 8 or Clause 3 Article 14 of the consolidated Decree.

2. Clause 3 Article 7 shall be applied in the cases in which incorrect declaration does not result in understatement of tax payable, overstatement of tax exempted, reduced, refunded or cancelled, tax evasion or tax fraud. In cases where incorrect declaration results in understatement of tax payable, overstatement of tax exempted, reduced, refunded or cancelled, tax evasion or tax fraud, penalties shall be imposed in accordance with Article 8 or Article 13 of the consolidated Decree.

3. In case of the offences specified in Clause 4 Article 7 of the consolidated Decree where there are grounds for conclusion that the good no longer exists or has been repurposed or has not been declared, penalties shall be imposed in accordance with Clause 1(g) Article 13 of the consolidated Decree.

4. Provisions of Clause 5 Article 7 of the consolidated Decree shall be applied to the cases where goods are not exported or sufficiently exported as declared. This provision does not apply to the cases where the customs declaration is invalid as prescribed in Clause 2 Article 25 of the Law on Customs.

Article 9. Offences against regulations on tax declaration specified in Article 8 of the consolidated Decree

1. Penalties specified in Article 8 of the consolidated Decree shall be imposed for export- or import-related offences that result in understatement of tax payable, overstatement of tax exempted, reduced, refunded or cancelled.

2. For failure to declare or incorrect declaration of names, categories, quantities, weight, volume, values, codes, tax rates or origins of exports or imports, it is necessary to clarify whether the offence is one of those specified in Article 8 or Clause 1 Article 13 of the consolidated Decree. If the offence is not one of those specified in Clause 1 Article 13 of the consolidated Decree, the penalties specified in Article 8 of the Decree shall be imposed.

3. For overstatement of categories, quantity or volume of products to be exported by an export processing enterprise, processed exports, domestic exports or re-exported goods that results in tax arrears of less than 100,000,000 dong, penalties shall be imposed in accordance with Clause 2(a) Article 8 of the Decree. If the tax arrears is 100,000,000 or over but below the level liable to criminal prosecution, penalties shall be imposed in accordance with Clause 1(dd) Article 13 of the consolidated Decree.

Article 10. Offences against declaration of cash in foreign currencies, cash in Vietnamese currency, negotiable instruments, gold, precious metals and gemstones specified in Article 9 of the consolidated Decree

1. Offences specified in Article 9 of the consolidated Decree are those committed by inbound or outbound passengers using passports, laissez-passers, border residents’ IDs against regulations of law on customs declaration or illegal possession of cash in foreign currencies while following exit or entry procedures. Penalties for illegal trafficking of cash in foreign currencies, cash in Vietnamese currency, negotiable instruments, gold, precious metals and gemstones across the border shall be imposed in accordance with Article 12 of the consolidated Decree.

2. Identification of permissible and prohibited foreign currencies carried by inbound or outbound passengers using laissez-passers or border residents’ IDs is specified in prescribed No. 92/2000/QD-NHNN7 dated March 17, 2000 of Governor of the State bank.

3. The exhibit value is the value exclusive of the value of foreign currencies, gold, Vietnamese currency exempt from customs declaration prescribed by law.

4. In cases where the offender has left Vietnam without a specific address, the customs authority shall still issue a decision on penalty imposition and cooperate with the Department of Foreign Affairs in sending it to the offender via the Embassy or consulate of the offender’s home country. If the decision on penalty imposition cannot be delivered, the exhibit shall be dealt with in accordance with Clause 4 Article 126 of the Law on Actions against administrative violations.

Article 11. Offences against regulations on customs inspection, tax inspection; customs supervision; customs control specified in Articles 10 to 12 of the consolidated Decree

1. Provisions of Clause 2(b) Article 10 of the consolidated Decree shall be applied to the cases where document retention is required by customs laws.

2. Provisions of Clause 2(c) Article 10 of the consolidated Decree shall be applied to the cases where requests of the customs cannot be complied with.

3. Suspicious customs seals; fraudulent and illegal documents to be declared, submitted or produced to the customs shall be impounded. Verification of the suspicious documents by the customs authority or a competent authority may be carried out, where necessary, to identify the offence specified in Clause 5(a) Article 10 of the consolidated Decree. Where a license is suspicious, the issuing authority must be informed in writing.

4. Penalties for failure to adhere to the route, location, border checkpoints, time for transport of goods in transit, temporarily imported goods without justifiable explanation or explanation accepted by the head of the Sub-department of Customs shall be imposed in accordance with Clause 2(a) Article 11 of the consolidated Decree.

5. Provisions of Clause 2(d) and (dd) Article 11 of the consolidated Decree shall only be applied to the cases where exhibit has not been sold or hidden. In cases where the exhibit has been sold or hidden, penalties shall be imposed in accordance with Clause 3(a), Clause 4, Clause 5(a) and (b) Article 11 or Clause 5(d) Article 12 of the consolidated Decree.

6. Regarding the offences specified in Clause 2 Article 12 of the consolidated Decree:

a) Where an offence specified in Clause 2 Article 12 of the consolidated Decree is committed by a person aged under 14, a record and decision on confiscation or destruction of the exhibit shall be issued;

b) In case where a good or money is transported across the border illegally or without legal documents against Clause 2 Article 12 of the consolidated Decree and the offender has made an escape and abandoned the good or vehicle, an administrative offence record shall be issue and the exhibit shall be dealt with in accordance with the Law on Actions against administrative violations if the offender is identifiable. If the offender is not identifiable, a record shall be issued and the exhibit shall be dealt with as prescribed by law.

Article 12. Penalties for tax evasion and tax fraud specified in Article 13 of consolidated Decree

1. Documents specified in Clause 1(a) Article 13 of the consolidated Decree comprise the documents to be submitted or produced to the customs authority while following customs procedures and after customs clearance is granted as proof the basis for determination of the amount of tax payable.

2. Penalties for declaration of incorrect codes or tax rates:

a) Provisions of Clause 1(b) Article 13 shall be applied to the cases where the offender has been instructed by the customs authority to declare the codes and tax rates of goods having the same names, codes and tax rates as those of the violating goods in any of the following manners:

a.1) The customs authority has issued a notice of analysis or classification result or a document concerning prior determination of codes and tax rates;

a.2) The customs authority has determined the codes and tax rates of the goods and issued a tax notice.

b) Penalties in other cases of incorrect declaration of codes or tax rates shall be imposed in accordance with Article 8 of the consolidated Decree.

3. If the failure to declare or incorrect declaration of names, categories, quantities, weight, volume, values, codes, tax rates or origins of exports or imports is found after customs clearance has been granted and the offender fails to voluntarily pay tax in full before the customs authority issues an offence notice, penalties shall be imposed in accordance with Clause 1(c) Article 13 of the consolidated Decree.

4. In cases where processed exports, domestic exports, products for export of export processing enterprises are not exported as declared, penalties shall be imposed in accordance with Clause 1(d) Article 13 of the consolidated Decree.  This provision does not apply to the cases where the customs declaration is invalid as prescribed in Clause 2 Article 25 of the Law on Customs.

5. Provisions of Clause 1 Article 13 of the consolidated Decree shall be applied when the customs authority has sufficient grounds to determine that the goods deliberately fails to declare or incorrectly declare the exports or imports for tax evasion or tax fraud purposes.

6. The basis for determination of tax arrears in the cases specified in Article 8 and Article 13 is the tax declared by the taxpayer and the tax payable reflected on the tax notice issued by a competent person or the tax payable as prescribed.

Article 13. Offences related to licenses and conditions for export or import

1. The licenses, conditions, standards specified in Article 14 of the consolidated Decree are those specified in the Government's Decree providing guidelines for implementation of the Law on Trade, its instructional documents and other legislative documents on licenses, conditions and standards applied to exports and imports.

2. For exports and imports subject to licensing, if the actual quantity or weight of goods is greater than that written on the license produced by the enterprise, penalties for unlicensed export or import shall be imposed upon the quantity or volume of goods in excess of the permissible quantity or volume written on the license.

3. For exports and imports subject to licensing, if the quality of actual imports is not consistent with those specified in the license, penalties shall be imposed in accordance with Clause 7 or Clause 8 Article 14 of the consolidated Decree.

4. Penalties for offences related to the import license, conditions for exporting or importing goods exchanged by border residents, humanitarian aid, gifts, samples, personal belongings, goods of inbound or outbound passengers, goods in transit shall be imposed on a case-by-case basis in accordance with Clauses 1 to 4 Article 14 of the consolidated Decree. Penalties in other cases shall be imposed in accordance with Clause 5 Article 14 of the consolidated Decree.

5. The cases of offences related to import licenses, conditions or standards specified in Clauses 1 to 5, Clause 7 and Clause 8 of Article 14 where import had been permitted by a competent authority before a decision on penalty imposition was issued, the penalty that requires the imports to be re-exported or removed Vietnam’s territory shall not be imposed.

Goods may be imported if a decision on penalty imposition and a decision on forcible re-export or removal of goods from Vietnam’s territory have been issued but a competent authority allows the import of goods within 30 days from the day on which the decision on penalty imposition is received and goods have not been re-exported.

Article 14. Actions against offences committed by State Treasuries, credit institutions and relevant entities

Provisions of Clause 3 Article 16 of the consolidated Decree do not apply to taxpayers. Taxpayers who commit offences against regulations on information provision shall be dealt with in accordance with Clause 3(b) Article 10 of the consolidated Decree.

Section 3. IMPLEMENTATION OF PREVENTIVE MEASURES, ENFORCEMENT OF ADMINISTRATIVE PENALTIES AND POWER TO IMPOSE PENALTIES

Article 15. Implementation of preventive measures and enforcement of administrative penalties

1. The implementation of preventive measures and enforcement of administrative penalties shall comply with the principles, procedures and authority specified in Articles 119 to 132 of the Law on Actions against administrative violations, Article 102 of the Law on Customs No. 54/2014/QH13 dated June 23, 2014 and Article 17 of the consolidated Decree.

2. In the cases where, via the risk management system or relevant information, an individual is suspected of carrying drugs, a competent person shall perform a body search, whether directly or using special devices.

3. Impoundment of exhibits whose values exceed the power of the Director of Provincial Customs Department or the Smuggling Investigation and Prevention Department or Post-clearance Inspection Department:

The person authorized to impose penalties specified in Clause 3 and Clause 4 Article 19 of the consolidated Decree shall issue a decision on impoundment of the exhibit in accordance with Clause 1 Article 125 of the Law on Actions against administrative violations, protect it in accordance with the Law on Actions against administrative violations and dispose of it as instructed by the authorized person.

Article 16. Searching vehicles and items as administrative formalities

1. The search of vehicles and items of entities granted diplomatic immunity and privileges shall comply with provisions of international treaties to which Vietnam is a signatory and subject to issuance of a decision by the Director of the General Department of Customs.

2. In the cases where there are grounds for suspecting that the baggage of a person granted diplomatic immunity and privileges contains items that are ineligible for privileges or banned from export or import by Vietnamese government or that fail to comply with Vietnam’s quarantine regulations, the search shall carried out under a decision by the Director of the General Department of Customs in the presence of a foreign service officer or his/her authorized representative.

Article 17. Distribution of power to impose penalties

1. The power to impose fines for tax offences specified in Article 8, Article 13 and Clause 1(a) Article 16 of the consolidated Decree of the persons specified in Clause 7 Article 19 of the consolidated Decree are specified in the Decree without limits on the maximum fines.

2. Offences that involve multiple customs authorities:

a) Regarding an administrative offence that involves multiple customs authorities, the first one to discover the offence and issue an offence record shall issue the decision on penalty imposition; relevant authorities shall transfer necessary documents at its request and cooperate in implementing the decision on penalty imposition, except for the case specified in Clause 2(b) of this Article.

b) Regarding an administrative offence where the exhibit, pending quality, food safety inspection results and quarantine results, is stored at a location other than that where customs procedures are followed, the Sub-department of Customs where the declaration is registered shall impose penalties within its authority; the Sub-department of Customs that cooperates in physical inspection shall transfer necessary documents to the Sub-department of Customs where the declaration is registered.

c) Within 05 days from the day on which the decision on penalty imposition is issued, the Sub-department of Customs that issued it shall inform relevant customs authorities of the result.

3. Where a customs offence is discovered, the persons authorized to impose penalties shall determine whether it is an administrative offence of criminal offence according to Criminal Code. If constitution of a criminal offence is suspected, the case shall be dealt with in accordance with criminal proceedings laws. In cases of suspected tax evasion, documents shall be delivered to a competent authority for inspection.

4. Regarding an offence discovered by a unit of the Smuggling Investigation and Prevention Department the fine for which exceeds the power of the leader of the smuggling control team or intellectual property control team or coastguard team, the fine shall be imposed by Director of the Smuggling Investigation and Prevention Department.

5. Where the additional penalty or remedial measure exceeds the power of the handling officer while the primary penalty (fine) does not, documents shall be promptly delivered to a competent authority.

6. Regarding an administrative customs offence where the fine, value of the confiscated exhibit or remedial measure exceeds the power of Director of the Provincial Customs Department, he/she shall transfer documents to the People’s Committee of the province where the offence is committed for issuance of a decision on penalty imposition.

7. Regarding an administrative customs offence where the fine, value of the confiscated exhibit or remedial measure exceeds the power of  the Director of the Smuggling Investigation and Prevention Department or Post-clearance Inspection Department, he/she shall verify the offence in accordance with Article 59 of the Law on Actions against administrative violations, complete the documents (proposal of penalties and remedial measures) and send a report to the Director of the General Department of Customs for issuance of a decision on penalty imposition.

Article 18. Delegation of the power to impose penalties, apply preventive measures and enforce imposition of administrative penalties

1. The power to impose administrative penalties of the persons specified in Clauses 2 to 8 Article 19, Clauses 2 to 4 Article 19a, Clauses 2 to 7 Article 19b of the consolidated Decree may only delegated to their deputies and in writing. The delegation decision shall specify the scope and duration of delegation.

2. Delegation of the power apply preventive measures and enforce imposition of administrative penalties shall comply with Chapter II Part Four of the Law on Actions against administrative violations.

3. A deputy authorized to impose administrative penalties and apply preventive measures and enforce imposition of administrative penalties are responsible before the law and his/her chief for his/her actions and must not authorize another person to perform the delegated tasks.

4. The assignment decision must not be used as substitute for the delegation decision.

Section 4. PROCEDURES FOR IMPOSITION OF ADMINISTRATIVE PENALTIES AND IMPLEMENTATION OF DECISIONS ON PENALTY IMPOSITION

Article 19. Issuance of offence record

The issuance of offence records and the power to issue offence records are specified in Article 58 of the Law on Actions against administrative violations, Article 6 of the Government's Decree No. 81/2013/ND-CP and Article 18 of the Government's Decree No. 127/2013/ND-CP.

Article 20. Transfer of offence dossier, time limit for issuance of decision on penalty imposition in the cases beyond the capacity of the Director of Provincial Customs Department,  Smuggling Investigation and Prevention Department or Post-clearance Inspection Department

1. Transfer of an offence dossier by the customs authority to the President of the People’s Committee of the province or the Director of the General Department of Customs for imposition of penalties shall comply with regulations. Time limit for dossier transfer:

Within 05 days from the day on which the offence record is issued, the Director of Provincial Customs Department,  Smuggling Investigation and Prevention Department or Post-clearance Inspection Department shall send the dossier and proposal of penalties to the President of the People’s Committee of the province or the Director of the General Department of Customs for consideration.

Regarding a complicated case specified in Clause 2 and Clause 3 Article 61 of the Law on Actions against administrative violations, such time limit shall be 20 days from the day on which the offence record is issued.

2. In more serious and complicated cases subject to explanation specified in Clause 2 and Clause 3 Article 61 of the Law on Actions against administrative violations where more time is needed for verification and collection of evidence as the basis for identification of the offence, the Director of Provincial Customs Department,  Smuggling Investigation and Prevention Department or Post-clearance Inspection Department shall request the Director of the General Department of Customs to extend the time limit for issuance of the decision on penalty imposition.

Within 05 days from the day on which the extension is granted, the Director of Provincial Customs Department,  Smuggling Investigation and Prevention Department or Post-clearance Inspection Department shall send the dossier and proposal of penalties to the President of the People’s Committee of the province or the Director of the General Department of Customs for consideration.

3. The customs authority that issued the impoundment decision shall manage the impounded exhibit in accordance with Article 82 and Article 126 of the Law on Actions against administrative violations.

Article 21. Dossier transfer for criminal prosecution

1. In the cases where the person authorized to impose penalties has not been able to determine whether the case is an administrative or criminal offence, he/she shall send enquiries to relevant criminal proceedings agencies and send them photocopies of the offence dossier before issuing a decision.  If there are responses within 10 days from the day on which enquiries are sent, the person authorized to impose penalties shall make a decision and send one copy to each of the enquired agencies.

Where a criminal proceedings agency requests dossier transfer, provisions of Article 62 of the Law on Actions against administrative violations shall be complied with.

2. Where an offence is suspected of constituting a crime, the handling officer shall transfer the offence dossier to a competent person for criminal prosecution (for smuggling, trafficking of goods or money across the border, trade in banned articles specified in Criminal Code) or to a criminal proceedings agency for criminal prosecution (for other criminal offences).

3. Where the criminal proceedings agency issues a notice of criminal prosecution, the customs authority shall transfer the original offence dossier to the criminal proceedings agency within 05 days from the day on which the notice is received.

Article 22. Issuance of decision on penalty imposition

1. In the cases where the penalty is a warning or fine of up to VND 250,000 imposed upon an individual or VND 500,000 imposed upon an organization, the person authorized to impose penalties shall issue the decision on on-site fining.

2. A decision on penalty imposition is effective from the day on which it is signed unless otherwise specified therein. Within 10 days from the day on which the decision on penalty imposition is received, the offender shall implement it.

3. The issuance of a decision on penalty imposition shall comply with Article 67 and Article 68 of the Law on Actions against administrative violations and Article 6 of the Government's Decree No. 81/2013/ND-CP.

4. The decision on penalty imposition shall be issued within 07 days from the day on which the offence record is issued.

Regarding a complicated case specified in Clause 2 and Clause 3 Article 61 of the Law on Actions against administrative violations, the decision on penalty imposition shall be issued within 30 days from the day on which the offence record is issued.

In more serious and complicated cases subject to explanation specified in Clause 2 and Clause 3 Article 61 of the Law on Actions against administrative violations where more time is needed for verification and collection of evidence, at least 10 days before the deadline for issuing the decision on penalty imposition, the handling officer shall request his/her chief in writing for extension of the deadline for up to 30 days.

5. In the cases where a foreign service officer or consul abuses his/her diplomatic immunity and privileges to engage in trade activities beyond their authority and commits a customs offence, it is necessary to discuss with his/her diplomatic mission or consular office of the offender’s home country.

Article 23. Implementation of the decision on penalty imposition

1. A decision on penalty imposition shall be implemented in accordance with Section 2 Chapter III Part Two of the Law on Actions against administrative violations.

2. The person who issued the decision on penalty imposition shall monitor and urge the implementation of the decision on penalty imposition by the penalized entity and issue a decision on enforcement if the decision on penalty imposition is not implemented by the deadline.

3. Regarding a decision on penalty imposition issued by the President of the People’s Committee of the province, Director of the Customs Department to which the offence dossier is transferred shall monitor its implementation and report to President of the People’s Committee of the province.

In the cases where a decision on penalty imposition is not implemented by the deadline, Director of Customs Department shall propose enforcement measures to President of the People’s Committee of the province.

4. Regarding a decision on penalty imposition issued by the Director of the General Department of Customs, Director of the Smuggling Investigation and Prevention Department or the Post-clearance Inspection Department shall monitor its implementation and disposal of the exhibits under the decision on penalty imposition; collect and transfer the fines and proceeds from liquidation of the exhibits to state budget in accordance with applicable regulations of law.

In the cases where a decision on penalty imposition is not implemented by the deadline, Director of the Smuggling Investigation and Prevention Department or the Post-clearance Inspection Department shall propose enforcement measures to the Director of the General Department of Customs.

Article 24. Monitoring removal and re-export of violating goods and vehicles from Vietnam’s territory

Violating goods and vehicles that have to be removed or re-exported from Vietnam’s territory shall be strictly monitored from the storage to the checkpoint of re-export.

The monitoring result shall be certified by the customs at the checkpoint of export and sent to the issuer of the decision on penalty imposition within 05 days from the day on which goods have been removed or re-exported from Vietnam’s territory.

Article 25. Late fine payment

An organization or individual that incurs administrative penalties for a customs offence but fails to pay the fine by the deadline specified in the decision on penalty imposition shall pay an interest of 0.05% per day on the unpaid fine.

The period during which the request for reduction or exemption of the remaining fine or permission for payment of fine by installments is considered shall not be aggregated with the period during which late payment interest is charged.

Chapter II

ENFORCEMENT OF ADMINISTRATIVE CUSTOMS DECISION

Section 1. GENERAL PROVISIONS

Article 26. Scope and regulated entities

1. This Chapter provides guidelines for implementation some Articles of Chapter II of Decree No. 127/2013/ND-CP and Decree No. 45/2016/ND-CP which are consolidated in document No. 10/VBHN-BTC dated July 12, 2016 of the Ministry of Finance (hereinafter referred to as “the consolidated Decree”)

2. Regulated entities:

a) Organizations and individuals against which the enforcement measure is taken (hereinafter referred to as “debtors”) as prescribed by the Law on Tax administration and the Law on amendments to the Law on Tax administration (hereinafter referred to as “the Law on Tax administration”).

b) Customs authorities and customs officials.

c) Persons entitled to and responsible for enforcement.

d) Regulatory bodies, other organizations and individuals involved in enforcement of administrative customs decisions.

Article 27. Monitoring and urging collection of taxes and fines

1. Customs authorities shall monitor and classify entities that owe taxes and/or fines (hereinafter referred to as “debtor”) and urge them to pay outstanding taxes and/or fines before the time for application of enforcement measures.

Collection of taxes and fines shall be urged in the following manners:

a) Sending a request for payment of taxes and/or fines to the debtor or the debtor’s guarantor;

b) Claim taxes and/or fines at the debtor’s premises;

c) Post a list of debtors on the network system;

d) Publish the list of debtors and the amounts of overdue taxes and fines they owe through mass media.

2. The debtor or the debtor’s guarantor, upon receipt of the tax and/or fine notice, shall promptly pay it in full as prescribed by law. If taxes fines are not fully paid by the deadline specified in Article 26 of the consolidated Decree, the enforcement measures specified in Article 27 of the consolidated Decree shall be applied.

Article 28. Enforcement of tax imposition upon goods granted customs clearance

In case of imposition of taxes upon goods after customs clearance has been granted, if the taxpayer or the taxpayer’s guarantor fails to pay taxes within 90 days from the deadline for paying tax, the customs authority shall enforce tax payment. The deadline for paying tax mentioned in this Article is the issuance date of the tax notice specified in Circular No. 38/2015/TT-BTC.

Article 29. Issuance of decision on enforcement

1. The person authorized to issue the decision on enforcement shall promptly verify information and issue the decision on enforcement of administrative customs decision if the taxpayer or the taxpayer’s guarantee or the offender fails to implement such decision by the deadline or attempts to liquidate their property or make an escape.

2. Verification of information about the debtor and conditions for implementation of the decision on enforcement are specified in Article 33, Article 38, Clause 1 Article 43 and Clause 1 Article 61 of the consolidated Decree.

Before issuing a decision on enforcement of remedial measures, the person authorized to issue the decision on enforcement shall discuss with the People’s Committee of the commune, the police authority and other relevant authorities where the debtor or exhibit is located to verify the status of the exhibit (whether or not the exhibit has been liquidated or destructed and other information about the exhibit) and fulfillment of conditions for implementation of the decision on enforcement.

3. In case of enforcement of an expired administrative tax decision, if the issuer of the decision on enforcement has good reasons to believe that such enforcement measures are effective at collecting taxes and/or fines, another decision shall be issued to replace the expired one.

Documents as the basis for issuance of the decision on enforcement shall be enclosed with the case profile.

4. Where conditions for implementation of a previous enforcement measure are fulfilled after another decision on enforcement of a subsequent measure is issued, the issuer of the decision on enforcement is entitled to terminate the ongoing measure and issue a decision on implementation of the previous measure to ensure collection of taxes, fines and late payment interest in full.

The new decision must specify the invalidation of the previous decision on enforcement.

5. In case where there are grounds for believe that the current enforcement measure is not effective at collecting the outstanding taxes, fines and/or late payment interest, the issuer of the decision on enforcement is entitled to terminate it and issue a decision on implementation of the next measure.

The new decision must specify the invalidation of the previous decision on enforcement.

Article 30. Organizing implementation of decision on enforcement

1. The issuer of the decision on enforcement is responsible for organizing its implementation.

2. Regarding a decision on enforcement issued by the President of the People’s Committee of the province or the Director of the General Department of Customs, the Director of Provincial Customs Department, Director of Smuggling Investigation Prevention Department or Director of the Post-clearance Inspection Department shall organize its implementation and submit a report to the President of the People’s Committee of the province or the Director of the General Department of Customs.

3. If the enforcement measure is distraint; collection of money or property held by another organization or individual that is located in another province, the Director of the Provincial Customs Department shall cooperate with the customs authority that issued the decision on enforcement or the customs authority responsible for organizing the implementation of the decision on enforcement issued by the President of the People’s Committee of the province or the Director of the General Department of Customs in organizing its implementation.

Article 31. Postponement of enforcement measures; temporary cancellation of suspension of customs procedures

1. Cases of postponement of an enforcement measure; temporary cancellation of suspension of customs procedures:

a) The taxpayer is permitted by the customs authority to pay tax debt by instalments as prescribed in Article 39 of Decree No. 83/2013/ND-CP;

b) The suspension of customs procedures is temporarily cancelled as prescribed in Clause 5 Article 46 of the consolidated Decree.

2. Authority and procedures:

a) In the cases where outstanding tax is paid by instalments as prescribed in Article 39 of Decree No. 83/2013/ND-CP and Article 134 of Decree No. 38/2015/ND-CP:

b) Cases of temporary cancellation of suspension of customs procedures specified in Clause 5 Article 46 of the consolidated Decree:

b.1) The debtor submits a written request for suspension of enforcement to Customs Department to which the debt is owed together with the guarantee letter of a credit institution;

b.2) The Customs Department to which the debt is owed shall verify the documents and send a report to the General Department of Customs within 05 working days from the day on which adequate documents are received;

If the documents are inadequate, the customs authority shall, within 03 working days from the day on which the documents are received, request the taxpayer to provide additional documents.

b.3) The General Department of Customs shall send enquiries to relevant units pursuant to Clause 5 Article 46 of the consolidated Decree and send a report to the Ministry of Finance within 07 working days from the day on which adequate documents are received;

b.4) The Ministry of Finance shall consider temporarily canceling the suspension of customs procedures on a case-by-case basis at the request of the General Department of Customs within 05 working days from the day on which the report from the General Department of Customs is received;

b.5) According to the decision on temporary cancellation of enforcement, the customs authority that issued the decision on enforcement shall temporarily cancel the suspension of customs procedures.

3. The specimen (Form QD-59) of the decision on temporarily cancellation of enforcement of an administrative customs decision where tax payment by instalments is permitted by the customs authority and temporary cancellation of suspension of customs procedures is enclosed with this Circular.

Article 32. Enforcement of administrative customs decisions where the offender attempts to escape or liquidate their property

1. Signs of escape and liquidation of property

a) Sign of escape:

The taxpayer that has not implemented the tax decision no longer operates their business at the registered location according to confirmation of the People’s Committee of the commune or neighborhood where the debtor’s business is located or a tax authority’s notification of the shutdown of the debtor’s business (even if the shutdown does not comply with procedures specified in the Law on Enterprises);

b) Signs of liquidation of property:

The taxpayer that has not implemented the tax decision initiate procedures for transferring, gifting, selling property, unfreezing or withdrawing their account without relevance to usual operations or the enterprise’s inventory is empty according to site inspection result. 

2. The issuer of the decision on enforcement, according to verified information, shall issue a decision on enforcement in accordance with procedures for each measure specified in Chapter II of the consolidated Decree and this Circular to collect taxes, fines and late payment interest (if any) in full.

Article 33. Cost of enforcement of administrative decisions

1. Cost of enforcement of administrative decisions specified in Article 37 of the consolidated Decree includes:

a) Costs of mobilizing forces to the enforcement: organizations and individuals directly participating in the enforcement such as: issuer of the decision on enforcement, enforcement officers, police officers, medical workers, representatives of the local government and social organizations, etc.;

b) Costs of property valuation and auction: remunerations for members of the valuation council; property assessment costs (if any); rent for premises and equipment serving the auction and property valuation; cost of publishing the auction notice; costs of storage or preservation of property; payment for transport of property;

c) Costs of dismantlement and transport of property; costs of fuel, rent for vehicles, protective equipment and medical equipment necessary for the enforcement;

d) Cost of storage or preservation of distrained property;

dd) Fire safety costs: fire engine rents, fire safety and firefighting equipment, payment for demining and rent for other necessary fire-protection and explosive-protection equipment;

e) Costs of publishing information about tax debtors;

g) Other costs of enforcement (if any).

2. Expenditure levels

a) Costs of storage or preservation of property; rent for premises and equipment serving the auction; cost of publishing the auction notice; payment for transport of property shall comply with the contract and valid invoices and documents as prescribed;

b) Other costs shall be paid in accordance with regulations of law;

Where a cost is not specified by law, the person in charge of implementation of the decision on enforcement shall decide the expenditure according to valid invoices and documents and take responsibility for his/her decision.

3. Sources of payment for costs of enforcement of administrative decisions

a) The costs of enforcement shall be paid by the debtor.

b) The customs authority that issued the decision on enforcement shall prepare an estimate of enforcement costs together with the issuance of the decision on enforcement.

c) If the costs have not been paid by the debtor, the customs authority may advance the payment from its budget and be reimbursed when the debtor pays the costs. The advance payment shall not exceed VND 100,000,000. If the customs authority is not able to advance the payment, the issuer of the decision on enforcement shall submit a report to its superior customs authority.

Article 34. Exemption and reduction of enforcement costs

1. The debtor may request exemption of enforcement costs if he/she:

a) is living belong the subsistence level or facing financial difficulties because of a natural disaster or conflagration. The subsistence level is the level of income that is not subject to income tax.

b) is member of a family that is beneficiary of preferential social policies;

c) The taxpayer’s is living alone, disabled or suffering from a chronic disease.

2. Procedures for claiming exemption or reduction of enforcement costs:

An application shall be sent to the customs authority that issued a decision on enforcement.

The application consists of:

a) If the debtor is facing financial difficulties because of a natural disaster or conflagration, a confirmation issued by the People’s Committee of the commune where the taxpayer resides or of the taxpayer’s workplace;

b) If the debtor is living below the subsistence level or a member of a family that is beneficiary of social policies, documents prescribed by regulations of law on benefits for revolutionary martyrs, wounded soldiers and the like;

c) If the debtor is disabled or suffering from a chronic disease, a confirmation issued by the Medical Assessment Council or medical authority as prescribed by the Ministry of Health.

3. Exemption and reduction level:

a) If the debtor runs into financial difficulties because of a natural disaster or conflagration after having partially paid the enforcement costs, the remainder of the enforcement costs may be cancelled;

b) In other cases, 50% reduction in the enforcement costs payable may be granted.

4. The issuer of the decision on enforcement shall receive the application and decide whether to grant exemption or reduction of enforcement costs within 05 working days.

Where a decision on exemption or reduction of the enforcement costs is issued, the enforcement costs shall be covered by the unit’s budget.

5. The decision on exemption or reduction of the enforcement costs shall be invalidated if the debtor attempts to hide or liquidate their money or property to avoid verification of conditions for enforcement.

Section 2. ENFORCEMENT MEASURES, PROCEDURES FOR ENFORCEMENT OF ADMINISTRATIVE CUSTOMS DECISION

Article 35. Forcible extraction of the debtor’s account balance; forcible account freezing

1. The debtor and organization or individual holding the debtor’s money shall provide information about the account to the issuer of the decision on enforcement e.g. account number, account balance, etc. at the request of the person authorized to issue the decision on enforcement.

2. According to existing data, the amount of outstanding taxes, fines and late payment interest and verified information, a decision on extraction of the debtor’s account balance shall be issued. The subsequent measure shall be taken if the account balance is zero or the account is not extracted by the deadline specified in Clause 1 Article 40 of the consolidated Decree.

3. If the account balance is smaller than the amount payable by the debtor, the State Treasury or credit institution still have to transfer the amount left in the account and transfer the remainder whenever such account is credited within the effective period of the decision.

4. If the debtor has not implemented the administrative tax decision but attempts to liquidate their property or make an escape, a decision on enforcement shall be issued or the State Treasury or credit institution shall be requested to extract the debtor’s account balance to implement the tax decision.

Article 36. Forcible deduction from the taxpayer’s salary or income

1. According to verified information, the person authorized to issue the decision on enforcement shall:

a) Issue a decision on forcible deduction from the taxpayer’s salary or income if the debtor’s salary or income is lawful;

b) Take the subsequent enforcement measure if the debtor’s salary or income is not lawful or the taxpayer, the income payer or relevant entities fail to provide information about the debtor’s salary or income within 03 days from the day on which the request for such information is received.

2. The salary and income from which the debts are deducted is the salary, salary equivalents and other lawful incomes earned in the month.

Article 37. Forcible suspension of customs procedures

1. The person authorized to issue the decision on enforcement, according to existing data, verified information and result of forcible deduction from the debtor’s account balance, salary or income, shall issue a decision on forcible suspension of customs procedures.

2. The issuer of the decision on enforcement shall publish it on the web portal of the customs by the deadline specified in Clause 3 Article 46 of the consolidated Decree.

Article 38. Forcible distraint of property or sale of distrained property at auction

1. Verification of information about the debtor’s property

a) The person authorized to issue the decision on enforcement is entitled to request verification of the property to the debtor, the property ownership registry, the secured transaction registry and relevant entities;

b) The person authorized to issue the decision on enforcement is entitled to verify information about the debtor’s property at the administrative division where the debtor resides or where the debtor’s business is located; the property ownership registry, the secured transaction registry and relevant entities;

c) Information to be verified include: value of the property reflected in the debtor’s accounting documents, the business performance (if the debtor is a business) or financial situation (if the debtor is not a business). If a piece of property has to be registered and the transfer of its ownership has to be based on the sale, transfer or donation contract or certificate of property ownership, information shall be verified via its owner, the local government, a regulatory body or a witness.

A verification record which contains the information provider’s signature shall be made;

d) Information to be verified about property that has to be registered may be published in order for persons having relevant rights and obligations to be able to protect their interests;

dd) In the case where the property is lawfully mortgaged and thus must not be distrained as prescribed in Article 49 of the consolidated Decree, the distraining authority shall inform the mortgagee of the debtor’s liabilities and request the mortgagee to inform the distraining authority as soon as the mortgage is redeemed;

e) After verifying information about the taxpayer’s property, the person authorized to issue the decision on enforcement must estimate the amount to be collected by taking such measure by estimating the value of such property after it is sold at auction.

If the proceeds from the enforcement is not sufficient to cover the enforcement costs, the superior authority shall be reported in order to suspend the issuance of the decision on enforcement (unless the enforcement costs are exempted or reduced as specified in Clause 4 Article 34 of this Circular);

g) If enquired entities fail to provide adequate information about the property within 05 working days from the day on which the enquiry is sent or it is determined that the proceeds will not be sufficient to cover the enforcement costs, the subsequent enforcement measure shall be taken.

2. When issuing a decision on distraint of a piece of property whose ownership has to be registered, the distraint organizer shall inform the following bodies of the distraint:

a) The land use right registry, the registry of property on land if the distrained property is land use right or property on land;

b) The road vehicle registry if the distrained property is a road vehicle;

c) Other registries defined by law.

3. Distraint procedures

a) The distraint shall be carried out during the day and during office hours, unless the debtor attempts to makes an escape or hide, liquidate or destroy the property;

b) If the distrained property is a house or a locked or packed item, the distraint organizer shall request the debtor or the property user or manager to unlock or unpack it; If the debtor or the property manager or user deliberately stays absent, the distraint organizer, in the presence of representatives of the local government and witness(es), shall unlock or unpack it and enumerate the items as prescribed by law;

c) Upon receipt of the distraint notice, the property registry shall not register any transfer of such property, unless otherwise prescribed by law.

Within 03 working days from the day on which the distraint is lifted or the distrained property is delivered, the distraint organizer shall inform the registry mentioned in Point c Clause 3 of this Article.

4. Some cases of distraint

a) The debtor’s land use right, houses, office buildings shall only be distrained if the value of other distrained property is not sufficient to implement the decision on enforcement;

b) The distraint is meant to implement the decision on enforcement and cover enforcement costs. If the debtor has only one piece of property whose value is greater than their liabilities and such property cannot be divided or the division of which will remarkably reduce its value, the distraint organizer is still entitled to distrain it;

c) If the debtor has one piece of real property under his/her private ownership and moving property under joint ownership and the value of the property under joint ownership is sufficient to implement the decision on enforcement, the distraint organizer shall provide explanation and request the debtor to decide on the property to be distrained;

d) If the debtor wishes to have the property under joint ownership distrained, the distraint organizer shall comply with such request but have to give the joint owner the priority to buy it;

dd) If the debtor has no other property, the distraining authority is entitled to distrain his/her mortgaged or pledged property if its value is greater than his/her liabilities. The distraining authority shall inform the mortgagee of the distraint.

5. Delivery of distrained property

If the debtor, the property user or manager, the debtor’s relative does not protect the property or is suspected of hiding, liquidating or destroying it or obstructing the implementation of the decision on enforcement, the property shall be delivered to another organization or individual capable of protecting it on a case-by-case basis.

The distraint organizer shall retain documents about the right to ownership and enjoyment of the property during the enforcement.

6. When property is distrained, the distraint organizer shall estimate its value to ensure full payment of outstanding, taxes, fines and late payment interest specified in decision on enforcement and the enforcement costs.  The distraint organizer shall estimate the value of distrained property according to market prices with due account taken of opinions of regulatory bodies and relevant parties.

7. Valuation council and duties thereof

a) Composition: the issuer of the decision on enforcement as the chairperson; representatives of finance authorities and relevant authorities as members. The person in charge of implementation of the decision on enforcement is entitled to hire or request an external assessor to assess the property. At the request of the person in charge of implementation of the decision on enforcement, the specialized authority shall appoint qualified persons to participate in the valuation.

Representatives of specialized authorities in the valuation council shall have qualifications suitable for the property to be assessed. If the property to be assessed is a house, participation of representatives of a real estate authority and construction authority in the valuation council is required.

b) Duties of valuation council:

Within 07 working days from the establishment date, the valuation council shall valuate the property. The individual whose property is distrained or the representative of the organization whose property is distrained may offer their opinions. However, the final decision shall be made by the valuation council.

The valuation council shall valuate the property according to market prices at that time and opinions offered by valuating bodies. The valuation council shall determine the value of the property under the majority rule. If the votes are equal, the chairperson shall cast the deciding vote. Members of the valuation council may retain their opinions and request the head of the customs authority to reconsider the valuation. The valuation of property whose prices are under state management shall be based on the prices imposed by the State.

8. The enforcement authority is entitled to revaluate the property in any of the following cases:

a) It is suspected that valuation procedures are violated;

b) There is a considerable price fluctuation;

c) The property is not sold after 6 months from the valuation date.

9. Revaluation of property

In the cases where revaluation of property is deemed necessary, the enforcement authority shall send a notice to the valuation council to revaluate property in cooperation or request a valuating body established under the law to revaluate property. The valuation specified in Clause 8(a) and (b) of this Article shall be carried out as follows:

a) The valuation is considered invalid if:

a.1) The composition of the valuation council is not conformable;

a.2) The debtor is not properly informed to participate in the valuation;

a.3) Regulations of law on property value is incorrectly applied in the cases the property prices are under state management;

a.4) Serious errors Article made during the classification or division of property;

a.5) Other cases specified by law;

b) Considerable fluctuation means:

At least 20% change in value of a piece of property assessed at under VND 100 million.

At least 10% change in value of a piece of property assessed at from VND 100 million to under VND 1 billion.

At least 5% change in value of a piece of property assessed at VND 1 billion or over;

c)  The debtor is entitled to request the customs authority to reconsider the value in the case of price fluctuation before the auction notice is published. The customs authority shall determine whether or not there is a price fluctuation and decide the revaluation.

10. Determination of starting price for distrained property at auction:

The starting price is the assessed value of property specified in Article 54 of the consolidated Decree.

11. The proceeds from the auction shall be:

a) used to pay the enforcement costs and auction costs;

b) used to pay taxes, fines and late payment interest specified in the decision on enforcement;

c) returned to the debtor if there is a remainder.

Article 39. Forcible collection of the debtor’s money or property held by another entity

1. The organizations or individuals holding the debtor’s money, property, goods, documents, financial instruments Article include:

a) An organization or individual that owes a due debt to the debtor;

b) An organization, individual, State Treasury, bank, credit institution authorized by the debtor to hold their goods or financial instruments or those proven by the customs authority to be under the ownership of the debtor.

2. Verifying information

a) The person having the power or authorized to issue the decision on enforcement is entitled to collect and verify information, request the third party holding the debtor's money or property to provide information about such money or property or debts payable to the debtor.

In the cases where the third party holding the debtor’s money or property fails to provide information, written explanation shall be provided to the customs authority within 05 working days from the day on which the request for information is received;

b) On the basis of information provided, a decision on forcible collection of the debtor’s money or property held by the third party or forcible collection of the debt owed by to the debtor shall be issued;

c) If the third party fails to provide or fully provide information or fails to explain for the failure to provide information about the debtor’s money or property they are holding within 05 working days from the day on which the request for information is sent, the subsequent measure shall be taken.

d) If information about the debtor’s money or property held by another entity is not available, the subsequent enforcement measure shall be taken.

Article 40. Forcible revocation of certificate of business registration, certificate of enterprise registration, license for establishment and operation, practice certificate

1. Verifying information

The person authorized to issue the decision on enforcement shall verify information about the taxpayer’s offence that results tin revocation of the certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate through taxpayer management databases at customs authorities or the issuing authority of those documents as the basis for issuance of the decision on enforcement and send a written request for revocation of those documents to the issuing authority.

2. Decision on enforcement

a) The decision on revocation of the certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate shall specify the date of issuance of the decision, basis for issuance, full name and position of the issuer; registered name, address and TIN of the person whose certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate is revoked, number and issuance date of revoked document, the amount of debt written on the tax decision and enforcement costs up to 5 days before the enforcement date; name, address, state account number and payment method; deadline for implementation, signature of the issuer and seal of the issuing authority of the decision on enforcement;

b) The decision on enforcement shall be sent to the debtor and relevant entities within 05 working days from its issuance date.

3. Written request for revocation

a) A written request for revocation of the certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate shall specify the receiving body, information about the debtor (registered name, TIN, business address); type of the document to be revoked; information about the document to be revoked (number, date of issue, etc.); reason for revocation (enclosed with copies of dossiers on previous enforcement measures); proposed time for revocation;

b) The written request for revocation shall be sent to the debtor and the authority entitled to revoke the document within 03 working days from its issuance date.

4. Responsibility of the authority entitled to revoke the certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate.

Within 10 working days from the day on which the written request for revocation is received, the receiving body shall inform the customs authority of its decision on revocation of the certificate of business registration, certificate of enterprise registration, license for establishment and operation or practice certificate.

Chapter III

IMPLEMENTATION

Article 41. Responsibility for implementation

1. The Director of the General Department of Customs shall organize and direct imposition of administrative penalties and enforcement of customs decisions; inspection of adherence to the law and settlement of complaints.

2. Chiefs of the persons authorized to impose penalties shall organize inspection of their penalty imposition.

Directors of Provincial Customs Departments, Director of Smuggling Investigation and Prevention Department, Director of Post-clearance Inspection Department shall closely inspect their imposition of administrative penalties.

Sub-departments of Customs, customs teams of Provincial Customs Departments shall inspect imposition of administrative penalties by their teams.

3. A customs official authorized to impose penalties, take preventive measures or enforce administrative decisions or a person authorized to advise such official that commits violations of law, shows irresponsibility or harass other people shall be strictly disciplined and pay damages as prescribed by law.

4. Specimens of the documents used during the process of imposition of administrative penalties, implementation of preventive measures, enforcement of penalty imposition and enforcement of administrative customs decision are provided in the Appendix enclosed herewith. The Director of the General Department of Customs shall provide instructions on using the aforementioned specimens among customs authorities.

Article 42. Transition clauses

1. Penalties for administrative customs offences committed before the effective date of this Circular shall be imposed according to regulations of law that are effective at the times such offences are committed.

In the cases where an offence is committed before the effective date of this Circular and discovered or dealt with after such date, provisions of this Circular shall apply if they are more advantageous to the offender.

2. In the case where an offender file a complaint against a decision on penalty imposition that is issued or implemented before the effective date of this Circular, regulations of law that are effective at the time the offence is committed shall apply.

Article 43. Effect

1. This Circular comes into force from December 01, 2016.

Circular No. 190/2013/TT-BTC dated December 12, 2013 of the Minister of Finance is abrogated.

2. When any document referred to in this Circular or any appendix enclosed with this Circular is amended or replaced, the newer one shall apply.

3. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Finance and the General Department of Customs for consideration.