Thông tư 190/2013/TT-BTC

CIRCULAR

DETAILING THE IMPLEMENTATION OF DECREE NO. 127/2013/ND-CP of OCTOBER 15, 2013 OF THE GOVERNMENT STIPULATING THE HANDLING OF ADMINISTRATIVE VIOLATIONS AND THE COERCIVE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN CUSTOMS

Pursuant to the Law on handling of administrative violations dated June 20, 2012;

Pursuant to the Law on Customs of June 29th, 2001; the Law on amendment, supplementation of a number of articles of the Law on Customs of June 14th, 2005;

Pursuant to the Law on Tax Administration of November 29^th, 2006; the Law on amendment, supplementation of a number of articles of the Law on Tax Administration of November 20^th, 2012;

Pursuant to Decree No. 81/2013/ND-CP dated July 19^th, 2013 of the Government detailing a number of articles and implementation methods of the Law on handling administrative violations;

Pursuant to Decree No. 83/2013/ND-CP of July 22, 2013 of the Government detailing the implementation of the Law on Tax Administration and the Law on amendment, supplementation of a number of articles of the Law on Tax Administration;

Pursuant to Decree no. 127/2013/ND-CP of October 15, 2013 of the Government stipulating the handling of administrative violations and the coercive implementation of administrative decisions in customs;

Pursuant to Decree No. 118/2008/ND-CP of November 27^th, 2008 of the Government stipulating functions, tasks, power and structural organization of the Ministry of Finance.

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

The Minister of Finance promulgates Circular detailing the implementation of the handling of administrative violations and the coercive implementation of administrative decisions in customs as follows:

Chapter I

SANCTION OF ADMINISTRATIVE VIOLATIONS IN CUSTOMS

Section 1. GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Chapter detailing the implementation of a number of articles of Chapter I of Decree No. 127/2013/ND-CP of October 15, 2013 of the Government stipulating the sanction of administrative violations and the coercive implementation of administrative decisions in customs (below referred to as Decree).

2. Individuals, organizations committing administrative violations in customs intentionally or unintentionally, but not being crimes, shall be sanctioned in accordance with provisions of the Decree on the sanction of administrative violations and the coercive implementation of administrative decisions in customs.

Article 2. Application of legal normative documents

1. The sanction of administrative violations, the application of sanction forms, remedial measures, application of measures to prevent administrative violations and assure for sanctioning administrative violations in customs must comply with principals, orders, procedures and competency as specified in the Law on handling of administrative violations No. 15/2012/QH13, the Law on Tax Administration No. 78/2006/QH10, the Law on amendment, supplementation of a number of articles of the Law on Tax Administration No. 21/2012/QH13, the Government’s Decree No. 81/2013/ND-CP of July 19, 2013, detailing a number of Articles and measures to implement Law on handling administrative violations , the Decree No. 83/2013/ND-CP of July 22, 2013 of the Government detailing the implementation of a number of articles of the Law on Tax Administration and the Law amending and supplementing a number of articles of the Law on Tax Administration, the Decree No. 127/ND-CP of October 15, 2013 of the Government stipulating the sanction of administrative violations and the coercive implementation of administrative decisions in customs.

2. The application of provisions in sanction of administrative violations in customs shall comply with provisions of Article 83 of the Law on promulgation of legal normative documents 2008, Article 3 of the Resolution No. 24/2012/QH13 of June 20^th, 2012 of the National Assembly on the implementation of the Law on handling of administrative violations.

3. The principal in sanction of administrative violations as specified in Article 3 of this Circular shall be applied to sanction administrative violations in customs as specified in the Decree No. 127/2013/ND-CP of October 15^th, 2013 of the Government stipulating the sanction of administrative violations and the coercive implementation of administrative decisions in customs.

Article 3. Application of principals for sanction of administrative violations

1. Individuals, organizations committing violations of provisions on state management in customs shall be sanctioned in accordance with provisions of the Decree on the handling of administrative violations and the coercive implementation of administrative decisions in customs or Decrees of the Government on sanction of administrative violations which are related to customs.

Individuals, organizations which have committed administrative violations, but refused to receive commodities shall still be legally responsible for their violations according to provisions.

2. First violation in customs as specified in clause 2 Article 2 of this Decree is the case that an individual or an organization has not previously been sanctioned administrative violations in customs or has been sanctioned administrative violations in customs for more than 06 months, since the date of finishing the implementation of the sanction decision of warning, or more than 01 year, since the date of finishing the implementation of other decisions on administrative sanction or without repeating an offence since the date that the statute of limitations for implementing the decision on sanction of administrative violations is expired.

3. In case the violation in customs is the consequence of another violation in the same customs domain, offender shall only be sanctioned for violation having tougher sanction.

Article 4. Cases not being sanctioned for administrative violations in customs domain

The application of cases not being sanctioned for administrative violations in customs according to Article 5 of the Decree shall be implemented as follows:

1. Commodities, transportation means being imported into the territory of Vietnam because of accidental events, force majeure events must inform the Customs Sub-departments or the Customs Control Squads or Maritime Control Squads or Customs Departments of nearest local provinces or cities or other competent state agencies as prescribed by law within 03 days, since the date of putting such commodities or transportation means into the territory of Vietnam.

Non-informed cases shall be handled according to prevailing laws.

Definition of accidental events or force majeure events shall comply with provisions in clause 13, clause 14 of Article 2 of the Law on handling of administrative violations.

2. Notification on mistakes as specified in clause 2 Article 5 of the Decree must be carried out in writing with clearly-stated reasons by the consignor, the consignee or the legal representative and be sent to the customs offices together with documents relating to the mistakes before the time that the customs offices decide to check actual conditions of goods or decide not to check actual conditions of goods; be accepted by the heads of customs offices where customs dossiers are received and handled. The rejection of mistakes must be made in writing with clearly-stated reasons by the customs offices.

In case there are evidences proving collusions between consignors, consignees and / or transporters in order to commit tax fraud, to transport goods illegally through borders or to smuggle, then customs offices have the right to refuse acceptance of mistakes.

3. Decisions on inspection of actual conditions of goods or decisions on exemption of checking actual conditions of goods as specified in clause 2 Article 5 of the Decree shall be made by determining lines for goods declaration forms by the data processing system or by approvals of competent persons in the customs declaration forms.

4. Provisions in clause 3 of Article 5 of the Decree shall apply to cases of amendment or supplementation of declarations in customs dossiers as specified in clause 2 of Article 22 of the Law on Customs, clause 2 of Article 34 of the Law on Tax Administration and provisions in Article 14 of Circular No.128/2013/TT-BTC of September 10^th, 2013 of the Ministry of Finance guiding customs procedures; customs inspection and supervision; taxes on import, export and tax administration of imported, exported goods.

5. For cases as provided in clauses 4, 5 and 7 of Article 5 of the Decree:

a) At the time where the violations are discovered, if having sufficient grounds for determining cases not being sanctioned, then the sanction competent persons shall only make the minutes for certification and keeping in dossier;

If there are insufficient grounds for determining violation of being sanction cases or not being sanction cases, then the customs officers who are carrying public services shall make minutes on administrative violations in customs; based on customs dossiers, relevant documents, the minutes on administrative violations in customs, the sanction competent persons as defined in clauses 2,3,4,5 of Article 19 of the Decree shall decide to sanction or not to sanction;

Violations of laws on taxes for goods import, export as defined in clause 4 of Article 5 of the Decree include violations as specified in clause 1, clause 2 of Article 8, clause 1 and clause 2 of Article 13 of the Decree.

6. When there are sufficient grounds proving the custom declarers state correct names of goods being actually exported or imported but state tax codes or first tax rate wrongly, the customs offices shall provide guidance on correct tax codes, tax rates and make the minutes for certification, without sanction.

7. The wrong declaration of a tax code or a tax rate shall be considered as first time if it is fully meet the following conditions:

Individual or organization has not yet exported or imported such commodity;

Not yet being guided, determined tax code or tax rate of such commodity by the Customs Office or being guided wrongly.

8. The following cases are determined as being guided, determined tax codes or tax rates by the customs offices:

Being guided by the customs office in declaring tax codes or tax rates and the minutes for certification of guiding declaration of tax codes, tax rates;

The Customs Offices issued documents to determine tax codes, tax rates in advance;

The Customs Offices determined tax codes, tax rates for commodities and issued decisions on tax assessment.

9. In case of importing goods, articles violating provisions on customs declaration, violating provisions of Article 14 of the Decree, but postal enterprises or express delivery enterprises carry out customs procedures on behalf of the goods owners according to legal provisions, if there are no grounds proving the collusion between consignors, consignees and customs declarers for fraudulent purposes, no sanction is made.

Article 5. Determination of value of material evidence involved in administrative violations to do as basis for determination of fine frame, sanction jurisdiction

In case of requirement for determining the value of material evidence involved in administrative violations to do as basis for determination of fine frame and sanction jurisdiction, the unit which has discovered the violations must determine the value of material evidences and be responsible for such determination.

The determination of the value of material evidences shall be carried out as follows:

1. For material evidence not being seized, the value of material evidence or means involved in violations is the customs value, being determined according to prevailing provisions on determination of customs value at the time of making the minutes on violations; if it is foreign currency, the exchange rate is determined in accordance with the Law on import, export taxes and legal documents guiding the implementation.

2. For commodities, material evidences being seized, it shall depend on each category of specific commodity or material evidence, and the value determination shall be carried out in accordance with provisions in Article 60 of the Law on handling of administrative violations.

3. Documents pertaining to the valuation must be presented in the dossier on handling of administrative violations, implementing the value determination of goods, material evidence involved in violations.

Article 6. Handling of goods, means involved in violations not being applied with the sanction form of confiscation

1. Commodities or means being temporarily held but not being seized, the persons who have issued decisions on temporary hold shall issue decisions on returning.

2. Commodities, means being returned shall be carried out with customs procedures or be delivered out of Vietnam or be re-exported in accordance with provisions; if commodities are subjects of application of the Law on import, export taxes and other relevant taxes, taxes must be paid in accordance with provisions.

Section 2. APPLICATION OF SANCTION FORMS AND SANCTION RATES

Article 7. Violations against regulations on time limit for customs procedures, submission of tax dossiers in Article 6 of the Decree

1. Time limit for carrying customs procedures as defined in Article 6 of the Decree is the time limit as specified in Article 18 of the Law on Customs and legal normative documents having provisions on time limit for carrying customs procedures in each form of import or export; transportation means on entry or exit.

2. In case the enterprise being sanctioned with act of late submission of documents under the customs dossier being entitled to late submission as defined in point b clause 1 Article 6 of the Decree, but still does not submit additional documents being entitled to a late submission, the customs office shall consider a settlement of commodities based on the existing dossier.

3. In case where a customs declarer suggests to adjust the norm in production of processed products; the norm in production of exported products after the provided time, if such norm adjustment is accepted by the Head of the Customs Sub-Department then the sanction shall comply with point g clause 2 Article 6 of the Decree.

4. Acts violating provisions in point d, e of clause 2; points a, b of clause 3; clause 4 of Article 6 of the Decree shall only be sanctioned if the time of being re-exported or re-imported is mentioned in the license, the customs declaration form or other documents according to legal provisions.

5. The time limit in point b clause 2 Article 6 of the Decree is the time limit for report, liquidity, tax finalization, consideration of contractual tax refund, the customs declaration form, the commodity, the materials, the raw materials as specified in legal normative documents in customs sector.

6. The determination on number of seats for the violating transportation means as defined in clause 4 Article 6 of the Decree shall be based on the registration paper for circulation of passenger transportation means. In case where the registration paper for circulation of passenger transportation means does not state number of seats, then the number of seats shall be determined in accordance with the actual inspection or supervision of the transportation means.

Article 8. Violations against regulations of customs declaration as defined in Article 7 of the Decree.

1. For acts which do not declare and wrongly declare goods under the list of humanitarian aid or non-refundable aid goods being certified by the Ministry of Finance or a state agency being authorized by the Ministry of Finance, the sanction shall comply with point b clause 1 Article 7 of the Decree.

In case where a commodity is not under the list being certified by competent state agencies, the sanction shall be based on violations in accordance with Article 8 of the Decree or clause 2 Article 14 of the Decree.

2. In case the import does not match with customs declaration, but the commodities are raw materials, materials, machineries, equipments being entitled to tax exemption such as: Commodities under the processing contract which have been registered, commodities under the list of tax exemption of investment projects, goods of temporary import, temporary export subject to exemption of import and export duties, the sanction shall comply with point a Clause 3 Article 7 of the Decree, recoiled in contracts or lists registered; if goods are not subject of tax exemption, sanction shall comply with Article 8 or Article 13 of the Decree.

3. Provisions in clause 3 Article 7 of the Decree shall apply in the cases of wrong declarations and do not cause lack of payable taxes or increase of taxes being exempt, reduced, refunded, uncollected or not under cases of tax frauds or evasion.

4. Provisions in clause 4 of Article 7 of the Decree shall apply in cases of customs declaration and clearance but do not export or export insufficiently in comparison with customs declaration. This provision does not apply to cases that customs declaration forms are not valid in customs clearance as specified in clause 2 of Article 18 of the Law on Customs.

Article 9. Violations against regulations on tax declaration as defined in Article 8 of the Decree.

1. The sanction as specified in Article 8 of the Decree shall apply to violations under forms of import, export of commodities leading to lack of payable taxes or increase of taxes being exempt, reduced, refunded or uncollected.

2. For acts which do not declare or wrongly declare name of commodities, types, quantities, weights, qualities, value, codes, tax rates, origin of import or export goods, inspection are needed for verification; if it is not cases as specified in clause 1 Article 13 of the Decree, the sanction shall comply with provisions in Article 8 of the Decree.

3. For acts which declare more than the actual export of goods being processed products, products being produced from imported materials (including materials being processed for re-export, materials being imported for production and re-export) and re-exported goods in terms of types, quantities, weight leading to a tax difference of under VND 100,000,000 shall be fined in accordance with provisions in point a, clause 2 Article 8 of the Decree. In case of a tax difference from VND 100,000,000 and above but still under the level of being examined for penal liability, sanction shall comply with point dd clause 1 Article 13 of the Decree.

Article 10. Violations against regulations on customs declaration of people who leave or enter Vietnam, with regards to foreign currencies in cash, Vietnam Dong in cash, gold as specified in Article 9 of the Decree.

1. Violations prescribed in Article 9 of the Decree shall apply to cases of persons on exit or entry using passports, laissez passers, border identity cards violating provisions on customs declaration; violating provisions on bringing foreign currencies in cash, gold which are not permitted to bring along upon doing entry or exit procedures. Other cases of bringing foreign currencies in cash, Vietnam Dong in cash or gold illegally through the borders shall be sanctioned in accordance with Article 12 of the Decree.

2. Value of illegal material evidence is the value after being deducted the value of foreign currencies, gold or Vietnam Dong which are not required to declare as prescribed by law.

3. In cases of offenders who have left Vietnam, without leaving specific addresses, the customs offices shall still carry out their issuance of decisions on sanction, coordinate with the Departments of Foreign Affairs in sending decisions on sanction to subjects of sanction through Embassies or Consular agencies of countries where offenders bear nationalities for implementation; in cases of the failure to deliver the decisions on sanction, illegal material evidence shall be handled according to clause 4 Article 126 of the Law on handling of administrative violations.

Article 11. Violations against regulations on customs inspection, tax inspection; customs supervision; customs control in accordance with Articles 10, 11 and 12 of the Decree

1. Provisions in point b clause 2 Article 10 of the Decree shall apply to cases of legal normative documents having provisions on storage of samples, dossiers or documents.

2. Clause 4 Article 10 of the Decree shall apply to cases of failure to implement contents required by customs offices in compliance with relevant legal normative documents for tax examination or inspection.

3. When acts as specified in point b clause 5 Article 10 of the Decree are discovered, forged customs seals, documents and materials must be sequestered. In cases of sequestered documents are licenses, the licensing agencies must be informed in writing.

4. Violations against regulations on transport of goods in transit, change of port, change of border gate, goods of trading in temporary import for re-export in contrary to routes, locations, border gates, time stated or registered in customs dossiers without explanation or with explanation but without legitimate reasons and without approval of head of customs sub-department, sanction shall comply with point a Clause 1 Article 11 of the Decree.

5. Provisions in points d, dd clause 1 Article 11 of the Decree shall apply in cases where fringing material evidence has not been scattered or consumed. In cases where fringing material evidence has been scattered or consumed, the sanction shall comply with point a, point b of clause 2, point a, point b of clause 3 of Article 11 or point d clause 5 Article 12 of the Decree.

6. For violations prescribed in clause 2 Article 12 of the Decree:

Violations prescribed in clause 2 Article 12 of the Decree which have been carried out by persons under 14 year-old shall be recorded in writing for confirmation, be issued with decisions to confiscate or destroy material evidence;

b) In cases where goods being illegally transported through borders or having no valid documents as specified in clause 2 of Article 12 of the Decree are discovered, but subjects of violations have escaped and left behind them the fringing material evidence or transportation means, then records on administrative violations must be made in accordance with Article 58 of the Law on handling of administrative violations if there are grounds for determination of subjects of violations (names, addresses of the fringing individuals or organizations); or records on certification of matters and handling of material evidence if subjects of violations, owners of the fringing material evidence or transportation means cannot be identified must be made.

Article 12. Penalties for tax evasion, tax frauds as specified in Article 13 of the Decree

1. Materials, documents as prescribed in point a, clause 1 of Article 13 of the Decree shall be comprised of materials, documents which have been submitted or presented to customs offices during doing customs procedures and after customs clearance shall be bases for determination or demonstration of payable taxes.

2. Failure of declaration or wrong declaration on names of goods, types, quantities, weight, qualities, value, codes of goods, tax rates, origin of exported or imported goods which are discovered after the goods have been conducted customs clearance, but the infringers do not voluntarily pay full taxes or not yet paid taxes in full as required before records of violations are made by customs offices, then the sanction shall comply with point c clause 1 Article 13 of the Decree.

3. Violations which are related to exported goods being processed goods, products manufactured from imported raw materials, including raw materials processed for re-export, raw materials imported for re-export production: In cases of carrying out the export procedures but fail to export, the sanction shall comply with point d, clause 1 Article 13 of the Decree. This provision does not apply to cases that customs declaration forms are not valid in customs clearance as specified in clause 2 Article 18 of the Law on Customs.

4. Acts as specified in point 1 clause 1 Article 13 of the Decree shall apply when customs offices have enough grounds to determine that tax payers have known well the actual export or import of goods but they have not declared or have declared wrongly in order to get tax evasion or tax frauds.

5. Grounds for determination of tax difference with the acts that lead to the declaration in lack of the tax payable or increase of tax exempted, reduced or refunded; tax evasion or tax frauds are: Tax statements of the tax payers and decisions on tax imposition of competent authorities or tax payable under regulations.

Article 13. For violations pertaining to licenses, conditions for export or import

1. Licenses, conditions, standards, criteria as specified in Article 14 of the Decree are licenses, conditions, standards, criteria as specified in the Decree of the Government detailing the implementation of the Law on Commerce, legal documents guiding the implementation and other legal normative documents stipulating licenses, conditions, standards or criteria for imported or exported goods.

2. In cases that goods are under the list of imported goods which are subject to licenses granted by the Ministry of Industry and Trade or under the management of specialized Ministries (not under list of goods banned from importation), within the time limit of customs clearance but the owners do not carry out import procedures but request for re-export, shall not be sanctioned.

3. For goods which are required to have import or export licenses, the enterprises presents such licenses but the actual quantities or weights of goods are more than the quantities or the weights as stated in those licenses, then goods are out of those licenses shall be sanctioned in terms of acts of goods import or export without licenses.

4. Violations which are related to import licenses, export or import conditions in which goods are under the list of goods being exchanged between border residents, humanitarian aid goods, gifts or movable assets, goods of persons leaving or entering Vietnam; goods in transit or transfer through border-gates, shall be sanctioned depending on each violation according to clause 1, clause 2, clause 3 and clause 4 Article 14 of the Decree; other cases shall be sanctioned in compliance with clause 5 Article 14 of the Decree.

5. For violations which are related to licenses, conditions, standards, criteria for importation as specified in clause 3; clause 4; points c, d clause 5 Article 14 of the Decree, but the imported licenses have been granted by the competent authorities before the time of decisions on sanction, then remedial measures of removal from the territory of Vietnam shall not be applied.

In cases where decisions on sanction and application of remedial measures of "removal from the territory of Vietnam or re-export" have been issued but within 30 days since the date of receiving decisions on sanction, the competent authorities allowed the importation and the goods have not been removed from Vietnam, then importation is allowable.

Article 14. Violations against regulations on bonded warehouses, tax-suspension warehouses

Owners of goods who do not carry out procedures to extend their warehouse leasing contracts under law, do not notify customs offices, do not remove their goods from bonded warehouses after their warehouse leasing contracts are expired, shall be sanctioned according to clause 1 Article 15 of the Decree, the goods shall be handled according to clause 4 Article 24 of the Decree No. 154/2005/ND-CP dated December 15th, 2005.

Article 15. Handling of violations of the State Treasuries, credit institutions and relevant individuals, organizations

1. Clause 1 Article 16 of the Decree shall apply to cases of more than 10 days since the expiry date of transferring money from bank accounts but the State Treasuries, credit institutions fail to extract, transfer all or parts respectively which are equal to the tax payable, from bank accounts of organizations or individuals those are forced for execution of administrative decisions to the Government Budget’s revenue accounts or the customs offices’ deposit accounts at State Treasuries, as per requirements of the customs offices, when the time of receiving the coercive decisions, the bank balance of violators are sufficient or excessive in comparison with taxes or fines payable.

2. Provisions at clause 3, Article 16 of the Decree shall not apply to organizations or individuals who are subjects of tax payment. Organizations, individuals that are subjects of tax payment, having violations against regulations on information provision shall be sanctioned according to point b clause 3 Article 10 of the Decree.

Section 3. IMPLEMENTATION OF MEASURES FOR PREVENTING ADMINISTRATIVE VIOLATIONS AND ENSURING THE SANCTION OF ADMINISTRATIVE VIOLATIONS; SANCTION JURISDICTION

Article 16. Application of measures for preventing administrative violations and ensuring the sanction of administrative violations.

1. The implementation of preventive measures for administrative violations and ensuring the sanction of administrative violations shall comply with principals, orders, formalities, competency as specified from Article 119 to Article 132 of the Law on handling of administrative violations and Article 17 of the Decree.

2. When there are grounds through risk management systems or related information to confirm that individuals are keeping drugs in their bodies, the competent persons shall carry out physical inspection directly or may use technical means or equipments for searching.

3. Temporary seizure of material evidence or transportation means of administrative violations in cases that violations are far beyond the sanction jurisdiction of the Directors of Customs Departments, the Director of the Anti-smuggling and Investigation Department, the Director of the Post-Clearance Audit Department:

Persons who have sanction powers as specified in clauses 3, 4 Article 19 of the Decree shall carry out their issuance of decisions on temporary seizure of material evidence or transportation means of administrative violations according to clause 1 Article 125 of the Law on handling of administrative violations; be responsible for reservation of material evidence or transportation means of administrative violations in compliance with the Law on handling of administrative violations and carry out the handling of such material evidence or transportation means as per decisions of competent persons.

Article 17. Inspection of transportation means, objects in accordance with administrative procedures

1. Inspection of transportation means, objects belongings of the entity entitled to immunity must comply with the International Agreements to which Vietnam is a signatory or a participant and must have decisions of the Director General of the General Department of Customs.

2. When having grounds to confirm that the luggage of person entering or existing Vietnam is entitled to immunity and privileges containing goods which are not entitled to immunity, or banned from import, export or goods do not comply with quarantine regimes of Vietnam, then the inspection shall be carried out according to decision of the Director General of the General Department of Customs, with the witness of the diplomat or his/ her authorized representative.

Article 18. Determination of sanction jurisdiction

1. The fining jurisdiction over tax violations as specified in Article 8, Article 13 and point a, clause 1 Article 16 of the Decree of those persons as stated in clause 7 Article 19 of the Decree are determined in accordance with the Decree, without limitation of maximum level of fines.

2. For administrative violations in which dossiers are related to many customs offices, the customs offices have firstly discovered and recorded the administrative violations shall have their jurisdiction in issuing decisions on sanction; other relevant customs offices shall be responsible for transferring all related documents as per requests of those customs offices handling cases of violations.

3. Handling violations which are related to goods in transit, goods of temporary import for re-export being exported in different checkpoints with those checkpoints of import:

a) Violations pertaining to goods in transit, goods of temporary import for re-export discovered by border-gate Customs sub-Departments, if there are signs of criminals, those border-gate Customs sub-Departments shall request Customs sub-Departments where customs clearance forms are made to transfer all related dossiers for handling in accordance with criminal proceedings;

b) Goods in transit, goods of temporary import for re-export having administrative violations, then border-gate Customs sub-Departments shall transfer relevant dossiers to Customs sub-Departments where customs declaration forms are made to sanction under their jurisdiction. If material evidence are goods banned from import, toxic waste or contaminating epidemics, detected at border gates, Customs sub-Departments where customs declaration forms are made shall transfer all relevant dossiers to Customs sub-Departments where sanction are being carried out within their jurisdiction.

Within 05 (five) days since the date of issuing the handling decisions, Customs sub-Departments presiding over handling shall notify the handling results to relevant Customs units.

4. When customs violations are detected, competent persons need to compare with provisions of the Penal Code in order to determine whether those are administrative violations or criminals. Cases with criminal signs shall be handled in accordance with law on criminal procedure. Dossiers for cases with signs of tax fraud shall be transferred to competent authorities for investigation under regulations within 10 (ten) days, since the date of being detected.

5. Violations being detected by units under Anti-smuggling and Investigation Department with penalty levels go beyond jurisdiction of Heads of Anti-smuggling and Control Squads, Heads of Intellectual Property Rights Protection and Control Squads and Heads of Maritime Control Squads under the Anti-smuggling and Investigation Department, sanction jurisdiction shall be implemented by the Director of the Anti-smuggling and Investigation Department under the General Department of Customs according to regulations.

6. In cases, main sanction form (fine) are under sanction jurisdiction of Customs offices, but supplement sanction form or remedial measures are not under jurisdiction of officers handling violations, they shall transfer dossiers immediately to competent authorities according to regulations.

7. For administrative violations in customs domain having sanction forms or levels, values of material evidence or transportation means of administrative violations being confiscated or remedial measures going far beyond the jurisdiction of Directors of Customs Departments; Directors of Anti-smuggling and Investigation Department, Directors of Post-clearance Inspection Departments shall transfer dossier themselves or through local Customs Departments to People’s Committees of provinces and centrally-run cities (hereinafter collectively referred to as provincial-level People’s Committees) where violations are occurred in order for Chairpersons of provincial-level People’s Committees to issue sanction decisions.

Article 19. Delegation of the power to handle administrative violations

1. Delegation of the power to handle administrative violations of titles as specified in clauses 2, 3, 4, 5 and clause 7, Article 19 of the Decree shall only be with deputies. The delegation of the power must be assigned in writing. In delegation documents, there are necessary to clearly determine the scope, contents and time limits of delegation. In cases of temporary seizure of persons according to administrative procedure, the delegation of power shall only be carried out when the Heads are absent.

Deputies being delegated power to handle administrative violations shall bear responsibilities before laws and their Heads regarding their handling of administrative violations and shall not be permitted to delegate or to authorize such power to any other individuals.

2. Not using decisions on task assignments or internal management of units for replacement of documents delegating power to handle administrative violations.

Section 4. PROCEDURE FOR SANCTION OF ADMINISTRATIVE VIOLATION AND IMPLEMENTATION OF DECISIONS ON PENALTIES OF ADMINISTRATIVE VIOLATIONS

Article 20. Making records of administrative violations

Making records of administrative violations, jurisdiction in making records of administrative violations shall comply with Article 58 of the Law on handling administrative violations, Article 6 of Decree No. 81/2013/ND-CP dated July 19^th, 2013 of the Government detailing a number of articles and implementation measures of the Law on handling administrative violations, Article 18 of Decree No. 127/2013/ND-CP dated October 15^th, 2013 of the Government stipulating sanction of administrative violations and coercive implementation of administrative decisions in customs domain.

Article 21. Transfer of dossiers for sanction of administrative violations, extension of time lime for issuing decisions of penalties in cases of violations going beyond the power to sanction of Directors of Customs Departments, Directors of Anti-smuggling and Investigation Departments, Directors of Post-clearance Inspection Departments

1. When dossiers of administrative violations in customs domain being transferred to Chairpersons of provincial-level People’s Committees for implementation of sanction under their jurisdiction, the hand-over of such dossiers must comply with provisions. Time of dossier transfer shall be as follows:

Within 05 (five) days, since the date of records on administrative violations, Directors of Customs Departments, Heads of Anti-smuggling and Investigation Departments, Heads of Post-clearance Departments shall send dossiers, proposals of sanction forms of administrative violations for Chairpersons of provincial-level People’s Committees to consider and decide.

For cases of administrative violations having complicated details but that are not under cases of explanation or for cases that are required to have explanation according to clause 2 and clause 3, Article 61 of the Law on handling administrative violations, the above-mentioned time limit shall not exceed 20 days, since the date of records on administrative violations. If material evidence of violation is temporary hold, customs offices shall be responsible for management and handling according to Article 82, Article 126 of the Law on handling administrative violations.

2. In specially serious cases, having complicated details and under cases of explanation according to clause 2, clause 3 of Article 61 of the Law on handling administrative violations, which need more time to verify or to collect evidences being grounds for determination of violations, Directors of Customs Departments, Directors of Anti-smuggling and Investigation Departments, Directors of Post-clearance Inspection Departments shall report to the Director General of Customs to get extension of time limit for issuing decisions on sanction.

Article 22. Transfer of dossiers for criminal handling

1. When considering violations for handling, persons competent to sanction of administrative violations who are unable to differentiate administrative violations or criminals yet, shall issue documents exchanging opinions together with photocopied dossiers of those cases and send to relevant agencies conducting criminal legal proceedings (Procuracies or Investigation agencies) before issuing decisions on sanction of administrative violations or criminal handling. Within 10 (ten) days, since the date of documents exchanging opinions and enclosed dossiers but having no response from agencies conducting criminal legal proceedings, persons competent to sanction of administrative violations shall handle violations according to provisions and afterwards send 01 decision to those agencies in which opinions have been exchanged for reference.

In cases the agencies conducting criminal legal proceedings request to transfer dossiers for their consideration and handling, they shall comply with Article 62 of the Law on handling administrative violations.

2. If it is confirmed that those violations having criminal signs, persons competent to sanction who are handling those cases shall transfer dossiers to competent officials for consideration and initiating lawsuits (for crimes as specified in Article 153, Article 154 of the Penal Code) or transfer dossiers to propose competent agencies conducting criminal legal proceedings for consideration and initiating lawsuits for cases having signs of other crimes.

3. In case where agencies conducting criminal legal proceedings notify on decisions on institution of criminal cases, customs offices shall transfer original dossiers of violations to competent agencies conducting legal proceedings within 05 (five) days, since the date of receiving notices.

Article 23. Issuance of sanction decisions

1. When sanctioning administrative violations in customs domain under forms of giving warnings or imposing a fine of up to VND 250,000 for individuals, VND 500,000 for organizations, competent officials shall issue decisions on sanction on the spot.

2. Decisions on sanction of administrative violations shall come into force since the signing date, except otherwise provided for by those decisions. Within 10 (ten) days since the date of receiving decisions on sanction, individuals or organizations being sanctioned must execute those decisions on sanction.

3. Issuance of decisions on sanction shall comply with Article 67, 68 of the Law on handling administrative violations, Article 6 of Decree No. 81/2013/ND-CP dated July 19th, 2013 of the Government detailing a number of articles and implementation measures of the Law on handling administrative violations.

4. Time limit for issuing a decision on sanction is 07 (seven) days, since the date of making the record on administrative violation.

For cases of administrative violations having complicated details but that are not under cases of explanation or for cases that are required to have explanation according to clause 2 and clause 3, Article 61 of the Law on handling administrative violations, the above-mentioned time limit shall not exceed 30 (thirty) days, since the date of records on administrative violations. In extremely serious cases, having complicated details and under cases of explanation according to paragraph 2 clause 2 and clause 3 Article 61 of the Law on handling administrative violations, which need more time to verify or to collect evidences then within 10 (ten) days before the expiry dates of decisions on penalties, competent officials who are handling cases shall report to his/her direct senior officials in writing in order to get extension; the extension must be made in written documents, duration of extension must not exceed 30 (thirty) days.

5. Diplomatic officials, consular officials taking advantages of preferences, privileges in order to conduct commercial activities which are out of their scope of functions and commit administrative violations in customs domain, then before sanction, it is needed to have discussions with diplomatic agencies, consular agencies of countries where offenders are working.

Article 24. Implementation of sanction decisions

1. The implementation of decisions on sanction shall comply with Section 2, Chapter III, Part No.2 of the Law on handling administrative violations.

2. Competent officials issued decisions on sanction shall be responsible for supervising, checking and urging the implementation of decisions on sanction of individuals or organizations being imposed with penalties and for issuing coercive decisions in cases of decisions on sanction are not being executed within stipulated duration.

3. Decisions on sanction being issued by Chairpersons of provincial-level People’s Committees, Heads of units where transfer dossiers of violations shall be responsible for supervising the implementation of decisions on sanction and for reporting the implementation situations of decisions on sanction to Chairpersons of provincial-level People’s Committees.

In cases, decisions on sanction are not executed within stipulated time limit; those officials shall be responsible for proposing the application of coercive measures for Chairpersons of provincial-level People’s Committees to issue coercive decisions.

Article 25. Management of money being collected from sanction of administrative violations

All amounts of money being collected from sanction of administrative violations (including fines on administrative violations, interests from late implementation of decisions on fines; money being collected from sale or liquidation of material evidence or transportation means of administrative violations which have been confiscated or other sums of money) must be deposited into temporary seizure accounts of customs offices being opened at the State Treasury according to prevailing provisions. After the time limit for making complaints are expired or complaints have been finally settled, based on results of handling, customs offices shall transfer such amounts from the temporary seizure accounts into the State Budget in accordance with the Law on State Budget.

Article 26. Supervision of removing out of the territory of Vietnam or re-export of illegal goods

Illegal goods which are forced to remove out of the territory of Vietnam or are forced to re-export must be strictly supervised from places where those illegal goods being kept to re-export border gates.

Results of supervision must be verified in writing by the exporting border-gate Customs offices and be sent back to units which issue decisions on sanction within 05 days since the date of removal of illegal goods out of the territory of Vietnam or re-export for archival of dossiers of cases.

Article 27. Handling late payments of fines

If individuals, organizations being sanctioned on administrative violations in customs domain are late in paying fines within time limit of implementing decisions on sanction of administrative violations, in addition to full payments of fines, those individuals or organizations have to pay an additional payment of 0.05% per day being counted on the total unpaid fine for every day of late payments.

The period during which cases are considered, decided to reduce or to exempt the remaining fines or to permit payments of fines in many times shall not be included in the periods of late payments.

Chapter II

COERCIVE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN CUSTOMS DOMAIN

Section 1. GENERAL PROVISIONS

Article 28. Scope of regulations and subjects of application

This Chapter details the implementation of a number of articles of Chapter II, Decree No. 127/2013/ND-CP of October 15th, 2013 of the Government stipulating sanction of administrative violations and coercive implementation of administrative decisions in customs domain.

Article 29. Supervising, urging the collection of taxes and fines

1. Customs offices at all levels are responsible for supervising, managing entities which owe taxes, fines; usually classify debtors, debts in order to urge and to collect debts before the time of applying coercive measures.

Forms of urging, collecting outstanding taxes or fines:

a) To send notices to request tax payers or tax guarantors for full payments of outstanding taxes or fines;

b) To directly go to the headquarters of the tax payers to request for payments of outstanding taxes or fines;

c) To notify on network systems about the list of debtors of taxes or interests;

d) To publicize on mass media about subjects owing taxes, fines; amounts of outstanding taxes or fines.

2. When tax payers, tax guarantors owing taxes or fines receive notices from customs offices about debts of taxes or fines, they shall have to quickly settle full payments of taxes or fines according to legal provisions. If it is beyond the deadline as specified in Article 26 of the Decree and the implementation is still not been made, coercive measures as specified in Article 27 of the Decree shall be applied.

Article 30. Coercion in cases of imposing taxes on post-clearance goods

In cases of imposing taxes on post-clearance goods, if it is more than 90 days, since the date of issuing decisions on imposing taxes and tax payers or tax guarantors do not voluntarily execute decisions on imposing taxes, the Customs offices shall executive coercions in compliance with provisions.

Article 31. Issuing coercive decisions

1. Officials competent to issue of coercive decisions must timely verify information and issue coercive decisions on implementation of administrative decisions in customs domain in cases of ending the stipulated period but tax payers or tax guarantors; individuals or organizations that commit administrative violations do not voluntarily execute the administrative decisions in customs domain or do have acts of dispersing property or attempting to escape.

2. In case where coercive decision for a measure has been no longer valid, if competent official who issued such coercive decision confirms that there are grounds for continuing application of such coercive measure for getting debts, fines or interests, then they are entitled to issue other decision in replacement of invalid decision for continuing implementation of such coercive measure.

Documents, papers being grounds for issuance of coercive decisions must be kept in dossiers of cases.

Article 32. Organizing the implementation of coercive decisions

Officials issuing coercive decisions of executing administrative decisions in customs domain shall be responsible for organizing the implementation of those coercive decisions.

2. For coercive decisions issued by Chairpersons of provincial-level People’s Committees, Directors of Customs Departments, Directors of Anti-smuggling and Investigation Departments, Directors of Post-clearance Inspection Departments where proposed the issuance of coercive decisions shall be responsible for organizing the implementation of such coercive decisions and reporting results to Chairpersons of provincial-level People’s Committees.

3. If applying coercive measures of seizing properties; collecting money, properties being hold by other individuals or organizations that have their headquarters located in other areas, Directors of Customs Departments that control such areas shall be responsible for coordinating with Customs Offices where coercive decisions are issued or Customs Offices where bear responsibilities in organizing the implementation of coercive decisions of Chairpersons of provincial-level People’s Committees in order to organize the implementation of coercive decisions.

Article 33. Delay in implementing coercive measures; Pausing the application of coercive measures of stopping customs clearance

1. In cases of delay in implementing coercive measures; pausing the application of coercive measures or stopping customs clearance:

a) Tax payers who are subjects being imposed with coercive measures are permitted by Customs offices to gradually pay outstanding taxes according to Article 39 of Decree No. 83/2013/ND-CP of July 22, 2013 of the Government detailing the implementation of a number of articles of the Law on Tax Administration and the Law on amendment, supplementation of a number of articles of the Law on Tax Administration;

b) Tax payers are entitled to delay in applying coercive measures, stop customs clearance in accordance with clause 5, Article 46 of the Decree.

2. Formalities, competency of settlement:

2.1. Gradual payments of outstanding debts shall comply with Article 39 of Decree No. 83/2013/ND-CP of July 22, 2013 of the Government detailing the implementation of a number of articles of the Law on Tax Administration and the Law on amendment, supplementation of a number of articles of the Law on Tax Administration and Article 132 of Circular No. 128/2013/TT-BTC of September 10^th, 2013 of the Ministry of Finance guiding customs procedures; customs inspection and supervision; export taxes, import taxes and tax management over import-export goods.

2.2. Cases of pause of the application of coercive measures, stopping customs clearance for import-export goods as specified in clause 5, Article 46 of the Decree:

a) Tax payers who are being imposed with coercion send written documents to request for pausing the coercion to Customs offices where coercive debts occur together with guarantee letters of credit institutes regarding outstanding taxes, interests and fines;

b) Customs Departments where tax payers have debts being imposed with coercive measures of stopping customs clearance shall receive, check the accuracy, the sufficiency of dossiers and reports; proposals shall be sent to the General Department of Customs within 05 (five) working days since the date of receiving valid dossiers;

In cases of invalid dossiers, within 03 (three) days since the date of receiving dossiers, customs offices which received dossiers must notify tax payers for completing dossiers.

c) The General Department of Customs shall base on provisions of clause 5, Article 46 of the Decree to do assessment on dossiers, to get opinions of relevant units (if any), to report the Ministry of Finance within 07 (seven) working days since the date of receiving valid dossiers;

d) The Ministry of Finance shall consider, settle the postponement of coercive measures, stopping customs clearance for each specific case at the proposals of the General Department of Customs within 05 (five) working days since the date of receiving reports from the General Department of Customs;

dd) Customs offices where issued coercive decisions shall base on documents on coercive measures of stopping customs clearance of the Ministry of Finance in order to postpone the implementation of coercive measures of stopping customs clearance.

3. Documents on pausing the implementation of coercive decisions of tax administrative decisions in customs domain for cases being permitted by Customs offices to gradually pay outstanding taxes and cases of pausing the application of coercive measures, stopping customs clearance shall comply with sample of decision (QD-59) which is attached to this Circular.

Article 34. Coercion in cases tax payers have not executed tax administrative decisions in customs domain but to have acts of escaping, scattering properties

1. Signs of escaping, dispersing properties

a) Signs of escaping:

Tax payers who have not executed tax administrative decisions no longer operating their productions or businesses at registered locations with verification by People’s Committees of communes, wards or towns or residential groups where coercive subjects having business activities or according to notices of tax agencies regarding coercive subjects have stopped their operations (including cases of dissolutions without following orders of the Law on Enterprise);

 b) Signs of dispersing properties

Tax payers who have not executed tax administrative decisions but to carry out procedures of transferring, giving, selling properties, clearing or dispersing the balances of bank accounts extraordinarily without concerns with normal transactions or through check at enterprises detecting that there are no more goods.

2. Competent officials who issued coercive decisions shall base on verified information to issue decisions on application of conformable coercive measures in accordance with formalities, orders of each measure as specified in Chapter II of the Decree and provisions of this Circular in order to collect full taxes, fines and interests (if any) for the State Budget.

Article 35. Expenses in coercive implementation of administrative decisions

1. Contents of expenses for activities pertaining to coercive implementation of administrative decisions as specified in Article 37 of the Decree shall be specified as follows:

Expenses in mobilizing persons to execute coercive decisions: expenses for agencies, organizations or individuals that directly get involved in coercive implementation of administrative decisions such as: officials issuing coercive decisions, officials implementing coercive decisions, protection police, medical staffs, representatives of local authorities, representatives of social organizations, etc;

Expenses in valuation of properties, auctions of properties: remunerations for members of valuation councils; expenses in assessment of properties (if any); rents of locations, means for organizations of auctions, notifications, expenses in organizations of revaluation of properties; expenses in posting auction notices on mass media; rental expenses for keeping or reserving properties; rents for transporting things, properties being imposed with coercive decisions;

Expenses for renting means to dismantle and transport things, properties; expenses for buying fuels, renting means, protection equipments, medical equipments to serve the implementation of coercive decisions;

Rental expenses for keeping or reserving properties have been seized;

Expenses for prevention of fire or explosion (if any): Renting fire engines, renting equipments preventing and fighting fire, checking and destroying bombs or mines, and other necessary means or equipments preventing fire or explosion;

Expenses for posting information about tax debtors on mass media;

Other actual expenses serving the implementation of coercive decisions (if any).

2. Levels of expenses

Expenses: Rent for keeping or preserving properties; assessment of properties; rents of locations, means for organizing auctions; posting information about auctions on mass media; rents for transporting things or properties being imposed with coercive decisions……shall be based on contracts, bills, invoices with legal and valid expenses in accordance with regulations;

Other expenses: levels of expenses shall comply with general provisions of the State;

In cases of having no provisions of the State, officials conducting coercive decisions shall decide actual levels of expenses which are accompanied by valid bills or invoices and shall be responsible for their decisions.

3. Financial sources ensuring expenses for implementing coercive decisions

Expenses for coercion of implementing coercive decisions shall be borne by coerced subjects.

Customs offices where issued coercive decisions shall put in estimates on coercive expenses in conjunction with the issuance of coercive decisions and shall be entitled to settlement after completing coercive cases.

If coercive expenses being borne by coercive subjects but have not been collected fully by customs offices, customs offices are entitled to get advances from operation expenditure sources of customs domain and to get refunds immediately after completing collection of money from subjects being imposed with administrative coercions. The advance payment level must not exceed VND 100,000,000 (one hundred millions). If cases having huge expenditure levels and amounts being permitted to pay in advance for use are insufficient, officials issuing coercive decisions shall report to higher level customs offices for consideration and settlement in each specific case.

Article 36. Exemption, reduction of expenses for implementation of coercion

1. Individuals being coerced may be considered for exemption or reduction of expenses in implementing coercion if they belong to one of following cases:

a) Having economic difficulties: Individuals having economic difficulties are individuals having incomes which do not guarantee the minimum living standards in order for them to live a normal life or having extremely economic difficulties prolonged by fire or natural disasters. The minimum level of income is the level of income not subject to income tax for high-income persons.

b) Being families which are enjoyed policies, meritorious with the revolution;

c) Being persons who are single, or disabled, or sick for long time.

2. Procedures for being exempted or reduced of coercive expenditures:

In order to be considered for exemption or reduction of coercive expenditures, individuals must prepare application for considering exemption or reduction of coercive decisions and send to customs offices where coercive decisions are issued.

Being enclosed with an application form includes:

a) For coerced subjects having economic difficulties by natural disasters or fire, there must be verification of commune-level People’s Committees where they are living or of Heads of agencies or organizations where they are working;

b) Coerced subjects are individuals having income levels which do not guarantee the minimum living standards in order for them to live a normal life or being families which are enjoyed policies, meritorious with the revolution shall carry out formalities, dossiers as guidance of prevailing laws regarding recognition and settlement of legitimate rights of revolutionary martyrs or families of revolutionary martyrs, war invalids or persons who are entitled to policies as war invalids or sick soldiers;

c) Coerced subjects are individuals being disabled or sick for long time shall have documents being certified by the Medical Inspection Council or competent health care agencies in accordance with provisions of the Ministry of Health.

3. Levels of exemption, reduction of expenses for implementation of coercion

a) Coerced individuals have executed a part of coercive expenditure having extremely difficult economic situations prolonged by natural disasters or fire, shall be considered for reduction of remaining expenditure for coercion;

b) The remaining cases shall be considered for reductions of 50% (fifty percent) of expenditure payable for coercion.

4. Officials issuing coercive decisions shall receive applications and enclosed dossiers, consider and decide the exemption, reduction of costs for coercion within 05 (five) working days.

In cases that agencies issuing coercive decisions have decisions on exemption or reduction of coercive costs, coercive costs shall be taken from operating costs of those units.

5. Decisions on exemption or reduction of coercive costs shall be cancelled if it is confirmed that coerced subjects have acts of scattering or hiding money, properties in order to avoid the verification of specific conditions for coercive implementation.

Section 2. COERCIVE MEASURES AND ORDERS OF, PROCEDURES FOR COERCIVE IMPLEMENTATION OF ADMINISTRATIVE DECISIONS IN CUSTOMS DOMAIN

Article 37. Coercion by measures of deducting money from bank accounts of subjects being coerced to implement administrative decisions at the State Treasury, commercial banks and other credit institutes; requests of seizing bank accounts.

1. Subjects being coerced to execute tax administrative decisions and organizations, individuals holding money of coerced subjects shall be responsible for providing information on bank accounts to competent officials who issue coercive decisions, such as: Banks where bank accounts have been opened, numbers and notations of accounts, current balance of accounts and other information pertaining to coerced subjects as per requests of competent officials who issue coercive decisions.

2. Competent officials shall base on available databases, outstanding taxes, fines, interests being late more than 90 days and information being verified, collected to issue coercive decisions on applying measures of deducting money from coerced subjects’ bank accounts which have been opened at the State Treasury, Commercial Banks, other credit institutes or issue decisions on transfer to next coercive measures if the time limit specified in clause 1, Article 40 of the Decree is over or if those bank accounts do not have balance.

3. If the balance is less than the amounts which must be deducted from those banks of coerced subjects, the State Treasury, commercial banks, credit institutes shall still have to deduct and transfer such amounts; to continue deducting and transferring outstanding amounts when there are transactions pertaining to those bank accounts of coerced subjects within valid duration of coercive decisions.

4. If there are information on individuals, organizations that have not executed tax administrative decisions in customs domain having acts of scattering properties or escaping, competent officials issuing coercive decisions shall issue coercive decisions in which requirements are clearly stated or issue documents (if coercive decisions were issued before that) requesting the State Treasury, Commercial Banks or other credit institutes to deduct money from bank accounts of subjects being coerced with the implementation of administrative decisions.

Article 38. Coercing by measures of deducting a part of salary or income

1. Based on verified results, competent officials issuing coercive decisions shall handle as follows:

a) To issue coercive decisions on applying measures of deducting a part of salary or income of the coerced individual if such individual has legal income;

b) To decide transferring to implementation of next coercive measures, if the coerced individual does not have a legal income or within 3 (three) working days, since the date of receiving the request from competent officials, the coerced individual or the organization, the individual who pays the salary or the income and relevant organizations or individuals do not provide information on the salary or the income of the coerced individual to competent officials who issued coercive decisions.

2. The total salaries and incomes being the base for deduction is all amounts of salaries, incomes of similar nature and other legal incomes being arisen in the month.

Article 39. Coercing by measures of stopping customs clearance for import-export goods

1. Competent officials shall base on available databases, verified information and coercive results of deducting money from coerced subjects’ accounts which have been opened at the State Treasury, Commercial Banks, other credit institutes; based on coercive results of applying measures of deducting a part of salary or income in order to issue coercive decisions on applying measures of stopping customs clearance for import-export goods.

2. Officials issuing coercive decisions shall be responsible for publicizing coercive decisions on applying measures of stopping customs clearance for import-export goods on the website of customs domain within the time limit as specified in clause 3, Article 46 of the Decree.

Article 40. Coercion by applying measures of property seizure, auction of seized property in accordance with laws

1. To verify information on properties of coerced subjects

a) Officials competent to issue coercive decisions shall be entitled to send documents to coerced subjects; agencies registering the ownership on properties; agencies registering secured transactions and other relevant organizations or individuals to get verification on properties;

b) Officials competent to issue coercive decisions shall be entitled to verify the properties of coerced subjects at the localities where the coerced subjects located or resided; agencies registering the ownership on properties; agencies registering secured transactions and other relevant organizations or individuals;

c) Information being verified shall include: verified properties, values of the verified properties which are be reflected in accounting books of the coerced subjects, results of productions and doing business (for establishments having productions, doing business or providing services) or economic situations (for non-business individuals); For assets which are required to register, the transfer of those assets must base on contracts for sale and purchase, conversion, assignment or donation, certificates of the property ownership, the verification shall be implemented through the owners, local authorities, competent agencies or witnesses such as the verification of the sellers, local authorities or competent agencies on the sale and purchase.

The verification must be formed in writing; verified contents must be clearly stated, together with signatures of persons or agencies providing the information;

d) Verified information on properties which are required to register or to transfer the ownerships of properties may be publicized widely in order for persons who have relevant rights or obligations to know and to have their interests protected;

 dd) For properties which have been legally pledged or mortgaged and under the list of properties which are not permitted to seize as specified in Article 49 of the Decree, agencies conducting the seizure shall notify pledgees, mortgagees on obligations of coerced subjects and request pledgees, mortgagees to notify agencies conducting the seizure in a timely manner when pledgees or mortgagees settle their payment obligations according to the pledge or the mortgage contracts;

e) Competent officials who issued coercive decisions after verifying properties of tax payers at above-mentioned locations shall need to determine amounts of money collectable for the state budget through the application of these coercive measures by way of estimating values of those properties after the auction.

In cases the amount of money collected from coercive activities are not enough to compensate for coercive costs, the senior agencies must be notified in order to postpone the issuance of coercive decisions (except otherwise being exempted or reduced in costs of implementing coercive decisions as specified in clause 4, Article 36 of this Circular);

g) If after 05 (five) working days, since the date of sending verification documents of properties to coerced subjects; agencies registering the ownership on properties; agencies registering secured transactions and other relevant organizations or individuals do not provide or provide insufficiently information on properties or in cases of determining the coerced money are not enough to compensate coercive costs, the next coercive measures shall be applied.

2. When issuing decisions on coercive measures of property seizure for seized properties which are under list of properties must be registered ownership, officials organizing the seizure shall immediately notify the following agencies on the property seizure:

a) Land use right registration offices, competent agencies for registration of assets attached to lands in cases of seizing land use rights or assets attached to lands;

b) Agencies conducting registration of inland transportation means, in cases of seized assets are inland vehicle transportation means;

c) Competent agencies for registration of ownerships or other use rights in accordance with laws.

3. Procedures in implementing measures of property seizure

a) The property seizure must be carried out in day time and within administrative hours being applied at localities of property seizure, except otherwise the coerced subjects being discovered to have acts of escaping, scattering or destroying properties, competent officials issuing coercive decisions shall be entitled to immediately organize the property seizure in order to stop above-mentioned acts of coerced subjects;

b) In cases of seizing properties which are residential houses or things being locked or packed, officials organizing the seizure are entitled to request coerced subjects, persons who are using or managing such properties to unlock or to unpack; if coerced subjects, persons who are using or managing such properties do not unlock or intentionally absent, the organizations conducting coercive decisions shall make records (with the presence of local authorities and witnesses) of unlocking or unpacking in order to check and list down details of properties and carry out the seizure as provided by laws;

b) From the time of receiving notices on property seizure, agencies registering ownerships or use rights of properties shall not execute the registration of transactions of those properties, except otherwise provided by laws.

Within 03 (three) working days, since the date of releasing property seizure or completing the sale or the hand-over of seized properties for coercive implementation of administrative decisions on taxation, officials organizing the seizure must notify agencies registering ownerships of properties, agencies registering secured transactions as specified in point c, clause 3 of this Article.

4. Specific cases when conducting the seizure

a) Only do seizure of land use rights, residential houses, headquarters of coerced subjects after completing seizure of other properties but still not enough for implementing coercive decisions;

b) Only do seizure of properties of coerced subjects which are sufficient enough for implementation of coercive decisions and payment of costs for coercion. If the coerced subject has only one property with its value is higher than the obligation of implementing the coercive decision but cannot be divided or the division shall result significant decrease of its value, officials organizing the seizure shall still be entitled to seize such property in order to ensure the implementation of the coercive decision;

c) If the coerced subjects has both the real estate being private property and the movable being the common property with other persons in which his/her part in the common property is scarcely enough for implementing the coercive decision, officials organizing the coercion shall clearly explain and suggests the coerced subject to have his/her opinion on which property shall be coerced first to make sure the implementation of the coercive decision;

d) If coerced subjects suggest to seize their common properties being movables which are in the common property block with other persons, officials organizing the seizure shall carry out the seizure of such properties, but they must ensure the priority in buying such properties of the co-owners;

dd) If the coerced subject has no any other property, agencies conducting the seizure shall be also entitled to seize those properties being pledged or mortgaged in case the value of those properties is higher than the guaranteed obligations. Agencies conducting the seizure shall be responsible for notifying the pledgee or the mortgagee on the seizure.

5. To entrust the seized properties for reservation pledgee

If coerced persons, persons who are using or managing the properties, relatives of the coerced persons do not reserve or it is confirmed that there are signs of scattering or destroying properties or hindering the implementation of the coercive decisions, the coerced properties shall be entrusted to other organizations or individuals that have favorable conditions for reservation, depending on each specific case.

Officials conducting the seizure of properties shall keep, reserve dossiers, documents on the ownership or use rights of properties to be safe during the implementation of the coercion.

6. When seizing the properties, officials conducting the seizure shall temporarily count the value of all properties supposed to be seize which are equal to a sufficient amount payable to the outstanding debts, interests or fines as stated in the coercive decisions and other coercive costs. Officials conducting the seizure shall base on the market prices and consult opinions of competent agencies and concerned persons in order to temporary count values of the coerced properties.

7. The Valuation Council and tasks of the Valuation Council

a) Members of the Valuation Council: Officials issuing coercive decisions are Chairpersons of the Councils; representatives of financial agencies or specialized agencies shall be members. Officials who chair the implementation of coercive decisions shall be entitled to hire or to solicit the assessment on values of the properties. When receiving requests from officials who chair the implementation of coercive decisions, specialized agencies shall be responsible for assigning professional officials to participate into the valuation.

Representatives of specialized agencies in the Valuation Councils shall be professional or technical officials of competent agencies managing specialties or professions with regard to the coerced properties. If the coerced properties are residential houses, there must be representatives of agencies managing houses and lands and agencies managing construction participating into the Valuation Councils.

b) Tasks of the Valuation Councils:

Within 07 (seven) working days, since the date of establishment, the Valuation Councils must conduct the assessment. Individuals being seized or representatives of organizations having coerced properties shall be entitled to contribute their opinions, but the final decisions shall come from the Valuation Councils.

The Valuation Councils shall base on market prices at the time of assessment and professional opinions of property assessment agencies or organizations to determine values of the properties. The Valuation Councils shall decide values of properties based on majority; in case parties have equal opinions on the property’s value, party that has opinion of Chairpersons shall be the base for determining the starting prices for selling the properties. Members of the Valuation Councils shall be entitled to preserve their opinions and to propose the heads of customs offices to re-consider the valuation. For properties in which the State uniformly manages prices, the valuation shall base on prices as provided by the State.

8. Agencies conducting the seizure shall be entitled to organize the revaluation of properties in the following cases:

a) It is confirmed that there is basis to determine violation of valuation procedures;

b) There is a big fluctuation of prices;

c) Over six months, since the date of valuation, the properties have not been sold yet.

9. Revaluation of the properties

When it is necessary to revaluate the properties, agencies conducting the coercive implementation of administrative decisions shall make notices to the Valuation Councils regarding revaluation of the properties in order to coordinate implementation or to request the assessment agencies being established in accordance with laws in order to conduct revaluation of the properties. The revaluation of the properties as specified in point a, point b, clause 8 of this Article shall be conducted as follows:

a) The valuation of the properties shall be considered as violations of procedures if it falls under one of the following cases:

a.1. The Assessment Councils have members who do not comply with legal provisions;

a.2. The coerced subjects are not legally notified in order to participate into the valuation of the properties;

a.3. Provisions on value of properties have been wrongly applied in case the properties are uniformly managed in term of prices by the State;

a.4. There were serious mistakes in the classification, determination of the valuable percentage of the properties;

a.5. Other cases as provided by laws;

b) The seized properties shall be considered as having big fluctuation of prices in the following cases:

Prices of the properties change from twenty percent (20%) and above, with regards to the property has its value of less than Vietnam Dong one hundred millions.

Value of the properties change from ten percent (10%) and above, with regards to the property has its value of between Vietnam Dong one hundred million and one billion.

Prices of the properties change from ten percent (5%) and above, with regards to the property has its value of Vietnam Dong one billion and above.

c) The coerced subjects are entitled to suggest customs offices to re-consider prices when there is fluctuation of prices before having public notices on the auctioned properties. The Customs Offices shall base on market prices, prices provided by agencies managing prices in order to determine whether there are fluctuation of prices or not and to decide organizing re-valuation.

10. Determination of starting prices for the auction of the seized properties:

The starting prices for the auction of properties are the property values being evaluated when the properties are seized as specified in Article 54 of the Decree.

11. The money collected from the auction of the seized properties of coerced subjects shall be handled according to following order:

a) Paying coercive costs, auctioned costs of seized properties or collected properties being hold by other individuals or organizations;

b) Paying amounts which are in proportion to taxes, interests or fines as stated in the coercive decisions to revenue accounts of the state budget or accounts being temporary hold by customs offices opened in the state treasury;

c) To refund to the coerced subjects (in case of odd amounts).

Article 41. Coercion by measures of collecting money or properties of the subjects being coerced to implement administrative decisions in customs domain which are being kept by other organizations or individuals

1. Organizations, individuals keeping money, properties, goods, documents or valuable certificates of subjects being coerced to implement administrative decisions in customs domain include:

a) Organizations, individuals having due debts needed to pay to the coerced subjects;

b) Organizations, individuals, the state treasury, banks, credit institutes that are authorized by the coerced subjects to keep their money, properties, goods, documents or valuable certificates or customs offices have sufficient evidences proving such money, properties, goods, documents or valuable certificates that are being kept by those individuals, households or organizations are under the ownership of the coerced subjects.

2. Verification of information

a) Competent officials or officials being assigned to issue coercive decisions shall be entitled to collect, verify information by writing documents to third parties who are keeping money, properties of coerced subjects and request for providing information on money, properties being kept or payable debts to coerced subjects. In cases, third parties keeping money, properties of coerced subjects are unable to conduct, they must send explanations to customs offices within 05 (five) working days, since the date of receiving requests from customs offices;

b) Based on information provided by third parties who are keeping money, properties of coerced subjects, competent officials shall issue coercive decisions by applying measures of collecting money or properties of coerced subjects which are being kept by third parties or payable debts to coerced parties;

c) If after 05 (five) working days, since the date of sending requests to third parties regarding provision of information on money, properties being kept or payable debts to coerced subjects, third parties did not provide; provided insufficiently or had explanation on non-execution of the provision of information on money, properties being kept, the next measures shall be applied.

Article 42. Coercion by applying measures of revoking the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits

1. Verification of information

Competent officials or officials being assigned to issue coercive decisions shall be responsible for organizing the verification of information on whether tax payers are subjects being applied with measures of revoking the business registration certificates, the enterprise registration certificates or the establishment and operation licenses or the practicing certificates through databases on management of tax payers at customs offices or at competent state agencies issuing above-mentioned documents for tax payers to be a base for issuing coercive decisions and for requesting competent state agencies which issued revoking the business registration certificates, the enterprise registration certificates or the establishment and operation licenses or the practicing certificates to revoke those certificates or licenses.

2. Coercive decisions

a) Coercive decisions by applying measures of revoking the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits must clearly note: Dates, months, years of issuing decisions; basis of issuing decisions; surnames and names, designations, working offices of officials who issued decisions; registered names, registered business addresses, tax codes of individuals being coerced by measures of revoking the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits; types of documents being suggested to revoke (numbers, days, months of issuance, etc); coerced amounts (pursuant to amounts as stated in tax administrative decisions and coercive costs being counted until the end of deadline of 05 (five) days before carrying out coercion), coercive reasons; names, addresses, revenue account numbers of the state budget, methods in transferring coerced amounts (cash or transfer); deadline of implementation and signatures of officials who issued decisions, seals of agencies which issued coercive decisions;

b) Coercive decisions must be sent to coerced subjects, relevant state agencies, organizations or individuals within 05 (five) working days, since the date of issuance.

3. Written coercive requests

a) Written coercive requests on revoke of the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits must have one of following major contents: The state agencies being recipients of coercive requests; Information of coerced individuals or organizations: registered names, tax codes, registered business addresses; types of documents being suggested to revoke; information pertaining to types of documents being suggested to revoke (numbers, dates of issuance, etc); reasons for conducting coercive measures (enclosed with duplicates of coercive dossiers of previous coercive measures); Duration suggested the issuing agencies to revoke the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits;

b) Written coercive requests must be sent to coerced organizations or individuals and competent state agencies in order to revoke the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits within 03 (three) working days, since the date of issuance.

4. Obligations of agencies competent to revoke the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits.

Within 10 (ten) working days, since the date of receiving coercive requests from customs offices, competent state agencies must notify customs offices on the implementation or the non-implementation of revoking the business registration certificates, the enterprises registration certificates, the establishment and operation permits, the practicing permits.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 43. Implementation obligations.

1. The General Director of the General Department of Customs shall organize and direct the handling of administrative violations, coercive implementation of administrative decisions in customs domain; check the legal compliance and settle complaints in order to ensure the unifying implementation within the branch and in accordance with laws.

2. Direct senior officials of officials who have competency in sanction shall be responsible for organizing the inspection of the handling of administrative violations of their junior officials.

Directors of Customs Departments, Directors of Anti-smuggling and Investigation Departments, Directors of Post-clearance Inspection Departments shall organize the strict supervision of the handling of administrative violations in their units.

At Customs sub-Departments, Inspection Squads under Customs Departments must assign officials who are specialized in supervising, guiding, inspecting the sanction of administrative violations of Professional Squads.

3. Customs officials, cadres who have competency in imposing penalties, applying measures to stop administrative violations and to ensure the sanction of administrative violations or coercive implementation of administrative decisions or who are assigned to act as advisors for competent officials who have competency in imposing penalties on administrative violations, coercive implementation of administrative decisions in customs domain, having acts which violate legal provisions or lack sense of responsibility or harassing or self-seeking acts, shall be strictly handled according to legal provisions, depending on the seriousness of violations; if they cause material damages to individuals or organizations, they must be responsible for compensation according to legal provisions on compensation responsibility of the State.

4. Samples of records, decisions, notices being used during the process of sanction of administrative violations or application of measures to stop administrative violations and guarantee of the handling of administrative decisions, coercive implementation of administrative decisions in customs domain shall comply with Annexes which are attached with this Circular. The General Director of the General Department of Customs shall guide the use of these samples uniformly in the domain.

Article 44. Transitional provisions

1. The sanction on acts of administrative violations in customs domain which have been occurred before the effective date of this Circular shall comply with legal provisions at the time of conducting violated acts.

For violated acts being occured before the effective date of this Circular but being discovered later or being considered or handled, this Circular shall be applied to consider, handle if provisions in this Circular are favorable to individuals or organizations that committed administrative violations.

2. For decisions on sanction of administrative violations which have been issued or implemented before the effective date of this Circular, in which individuals or organizations being sanctioned administrative violations in customs domain still have complaints, legal provisions which were effective at the time of committing violated acts shall be applied to the settlement.

Article 45. Implementation effect

1. This Circular takes effect on January 26^th, 2014.

To annul the Circular No. 193/2009/TT-BTC of October 1st, 2009 of the Minister of Finance guiding the implementation of Decree No. 97/2007/ND-CP of June 7th, 2007 of the Government stipulating the handling of administrative violations and coercive implementation of administrative decisions in customs domain and Decree No. 18/2009/ND-CP of February 18th, 2009 of the Government on amendment and supplementation of a number of articles of Decree No. 97/2007/ND-CP

2. Any difficulties and problems arising in the course of implementing this Circular should be reported to the Ministry of Finance, the General Department of Customs for research and settlement./.