Thông tư 205/2010/TT-BTC

Circular No. 205/2010/TT-BTC of December 15, 2010, guiding the Decree no.40/2007/ND-CP dated March 16, 2007 of the Government stipulating on determination of customs value for imported, exported goods.

Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16 đã được thay thế bởi Circular 39/2015/TT-BTC on customs value of imported goods and exported goods và được áp dụng kể từ ngày 01/04/2015.

Nội dung toàn văn Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16


MINISTRY OF FINANCE
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VIETNAM SOCIALIST REPUBLIC
Independence – Freedom - Happiness

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No.: 205/2010/TT-BTC

Hanoi, December 15, 2010

 

CIRCULAR

GUIDING THE DECREE NO.40/2007/ND-CP DATED MARCH 16, 2007 OF THE GOVERNMENT STIPULATING ON DETERMINATION OF CUSTOMS VALUE FOR IMPORTED, EXPORTED GOODS.

Pursuance to the Law on Customs 29/2001/QH10 dated June 29, 2001; the Law on Amending, Supplementing a number of Articles of the Law on Customs No. 42/2005/QH11 dated June 14, 2005;
Pursuance to the Law on Import Duty and Export Duty No.45/2005/QH11 dated 14/6/2005;
Pursuance to the Law on Tax Management No.78/2006/QH11 dated November 29, 2006;
Pursuance to the Law on Intellectual Property No.50/2005/QH11 dated November 29, 2005, the Law on Amending, Supplementing a number of Articles of the Law on Intellectual Property No.36/2009/QH12 dated June 19, 2009;
Pursuance to the Decree No.40/2007/ND-CP dated March 16, 2007 of the Government stipulating on determination of customs value for imported, exported goods;
Pursuance to the Decree No.87/2010/ND-CP dated August 13, 2010 of the Government detailing the implementation of a number of Articles of the Law on Import Duty and Export Duty;
Pursuance to the Decree No.85/2007/ND-CP dated May 25, 2007 of the Government detailing the implementation of the Law on Tax Management; the Decree No.106/2010/ND-CP dated October 28, 2010 amending, supplementing a number of Articles of the Decree No.85/2007/ND-CP dated 25/5/2007 and the Decree No.100/2008/ND-CP dated 08/9/2008 2007 of the Government detailing a number of Articles of the Law on Personal Income Tax.
Pursuance to the Decision No.149/2005/QD-TTg dated June 20, 2005 of the Government on pilot implementation of e-customs procedures; the Decision No.103/2009/QD-TTg dated August 12, 2009 of the Prime Minister on amending, supplementing a number of Articles of the Decision No.149/2005/QD-TTg;
Pursuance to the Decree No.118/2008/ND-CP dated October 27, 2008 of the Government providing functions, duties, powers and organizational structure of the Ministry of Finance;
To implement the Resolution No.25/NQ-CP dated June 02, 2010
of the Government on Simplifying Administrative Procedures under the management functions of Ministries and Branches;
The Ministry of Finance guides the Decree No.40/2007/ND-CP dated March 16, 2007
stipulating on determination of customs value for imported, exported goods as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of governing and subjects of application

1) Scope of governing: This Circular guides the inspection, determination of customs value aiming to calculate tax and collect statistic for imported, exported goods.

2) Subjects of application: Organizations and individuals who export and import goods, customs agencies, customs officers and other organizations and individuals who perform tasks related to inspection and valuation of exported and imported goods.

Article 2. Interpretation of Term

The terms used in this Circular are construed as follows:

1) Goods purchase and sell contracts: mean the agreements to purchase and sell goods which are established in writing or other forms with validity equivalent to the written documents including telegraph, telex, fax and data messages. Accordingly: the seller is obliged to deliver goods, transfer ownership of goods to the buyer and receive payments; the buyer is obliged to pay for the seller and receives goods; goods are transferred from the seller to the buyer, through border gate, Vietnam border or from the duty-free zones into the domestic market or from domestic market to the duty-free zones.

Sellers include goods sellers, service providers.

2) Commission of purchase: means an amount that the buyers make payment to their representative agents to buy imported goods at most reasonable prices.

3) Commission of sale: means an amount that sellers make payment to their representative agents to sell exported goods for buyers.

4) Brokerage fees: means an amount that the buyers or sellers or both buyers and sellers must pay to the brokers to assume the role of intermediaries in the transaction of purchasing, selling imported goods.

5) Copyright fees: means an amount that the buyers must pay directly or indirectly to the subject of intellectual property rights, to be transferred ownership or right to use the intellectual property rights.

5.1) Intellectual property rights: mean the rights of organizations and individuals for intellectual property, including copyrights and rights related to copyright and industrial property rights and rights for plant varieties.

5.1.1) Copyrights are the rights of organizations and individuals for the work they created or owned.

5.1.2) Rights related to copyright are the rights of organizations and individuals for their performances, recordings, video recordings, broadcast programs, satellite signals carrying encrypted programs.

5.1.3) Industrial property rights are the rights of organizations and individuals for the inventions, industrial designs, layout designs of semiconductor integrated circuits, trademarks, trade names, geographical indications, trade secrets created by their own or ownership and the rights against unfair competition.

5.1.4) Rights for plant varieties mean the rights of organizations and individuals for the new plant varieties created or discovered and developed by their own, or are enjoyed the ownership.

Contents of the rights as provided in the Law on Intellectual Property.

5.2) Subjects of intellectual property: mean the owners of intellectual property rights or organizations, individuals that are transferred intellectual property rights by its owner.

6) License fees: mean an amount that the buyers must pay directly or indirectly to the subjects of intellectual property rights to perform some activities within the rights of industrial property rights.

7) Goods with value which are considered "approximate" with each other: If the difference between them affected by the following objective factors:

7.1) The nature of the goods, the nature of the goods producing sector;

7.2) The seasonal nature of goods;

7.3) The insignificant difference on commerce.

While considering the approximation of the two values, it must be put on the same purchasing and selling conditions.

8) Identical imported goods: mean imported goods which are identical in all respects, including:

8.1) Physical characteristics such as product surface, component materials, manufacturing methods, function, purpose to use and mechanical, physical, chemical nature...;

8.2) Products quality;

8.3) Reputation of brands;

8.4) Being produced in the same country, by the same producer or authorized producer.

The imported goods which basically satisfy the conditions being identical imported goods, but having insignificant differences in appearance such as color, size, style without affecting value of goods shall still be considered as identical imported goods.

The imported goods are not considered identical goods if in the process of producing such goods, producers used the technical design, construction design, planning of implementation, art design, the design drawings, diagrams, scheme of similar products and services which are made in Vietnam provided free to the sellers by buyers.

9) Similar imported goods: means the goods, though not identical in all aspects, but they have the same basic characteristics, including:

9.1) Being made from the similar raw material, material with the same manufacturing methods;

9.2) With the same function, purpose of use;

9.3) With similar product quality;

9.4) May be interchangeable in commercial transactions, i.e. the buyer accepts the replacement of this goods for others;

9.5) Being produced in the same country, by the same manufacturer or other manufacturers that are authorized, imported into Vietnam.

The imported goods shall not be considered as similar if in the process of producing one of such goods, producers used technical design, construction design, art design, implementation plan, the design drawings, diagrams, scheme or similar products and services which are made in Vietnam provided free to the sellers by buyers or buyers reduce price to the seller.

10) Identical exported goods: mean exported goods which are identical in all respects, including:

10.1) Physical characteristics such as product surface, component materials, manufacturing methods, function, purpose to use and mechanical, physical, chemical nature...;

10.2) Products quality;

10.3) Reputation of brands;

10.4) Being made in Vietnam, by the same producer or authorized producer.

11) Similar exported goods: means the goods, though not identical in all aspects, but they have the same basic characteristics, including:

11.1) Being made from the similar raw material, material with the same manufacturing methods;

11.2) With the same function, purpose of use;

11.3) With similar product quality;

11.4) May be interchangeable in commercial transactions, i.e. the buyer accepts the replacement of this goods for others;

11.5) Being made in Vietnam, by the same manufacturer or other authorized manufacturers.

12) Imported goods with the same class or category: mean the goods which are in the same group or a set of groups of goods produced by the same industry or the specific field, including identical imported goods and similar imported goods.

For example, category of construction steel such as rolled smooth steel, twisted steel, form steel (U, I, V ...) produced by the steel production industry, is goods with the same category.

12.1) In the method of determining the taxable value under the deductible value "imported goods with the same class or category" are the goods imported from all countries into Vietnam, regardless of origin.

12.2) In the method of determining the taxable value under the calculated value "imported goods with the same class or category" must be the imported goods having the same origin with the goods which are being determined taxable value.

13) First entry gate: means the destination port indicated in Bill of Lading. For transport by road traffic, railway or river, the first entry gate is the port of destination stated in the contract.

14) Software: means data, program or instruction which is expressed under the form of commands, codes, schemes or any other form which, when transmitted into a data processing device enabling such device to perform a task or achieve a specific outcome. Products of audio, video or images are not considered as software according to provisions.

15) Intermediaries: are understood as the floppy disk, CD, tape, mag-card or any object which may store information, are used as a means of temporary storage or to transfer software. Enabling the software to be used, it must be delivered, installed or integrated into data processing devices. Intermediaries herein do not include integrated circuits, IC, semiconductors and similar devices or components mounted on circuit boards or such devices.

16) Assumed price: means the price rate determined when not yet had the goods sale and purchase activities to import goods into Vietnam.

17) Imposed price: means the price rate determined not in compliance with the principles and methods of determining the taxable value guided in this Circular.

Article 3. Principles for determining customs value

1) Customs value for purposes of calculating tax (hereinafter referred to as taxable value) is determined according to the principles guided in Chapter II this Circular.

2) Customs value for statistical purposes (hereinafter referred to as the statistical value) is determined according to the following principles:

2.1) For goods which are subject to tax, the statistical value is the taxable value.

2.2) For goods which are not subject to tax, goods exempted from tax, reviewed for tax exemption, the statistical value is the value declared by the customs declarants upon the following principles:

2.2.1) For imported goods, being the selling price at the first entry gate (CIF, DAF price);

2.2.2) For exported goods, being the actual selling price at the exit gate (FOB, DAF price).

Article 4. Time of determining customs value and time of paying tax

1) Time of determining the customs value for exported or imported goods is the date of registration of customs declarations of exported or imported goods.

For the case of delaying the determination of taxable value, time of determining the taxable value for exported or imported goods is the date that customs agencies or customs declarants determining taxable value according to guidance in this Circular

2) Time of paying tax:

2.1) For the difference between the amount of tax imposed by the customs agencies and the amount of tax declared, calculated by taxpayers in case the customs clearance of goods has been made is 10 (ten) days from the date the Customs agency issues the decision to impose tax;

2.2) For other cases, time of paying tax is implemented according to provisions in clause 3, 4 and 5 Article 42 of the Law on Tax Management.

Article 5. Rights of customs declarants

1) Being entitled to request the customs agencies:

1.1) To keep confidential commercial information provided to customs agencies, including the kinds of information of the buyers, sellers and consignees, the domestic purchaser, export prices, import prices, prices for reselling domestic goods, the production cost of imported goods;

1.2) To instruct the determination, declare the taxable value according to the order, principles and methods of determining value;

1.3) To notify in writing on the taxable value, the basis and methods used to determine the taxable value in the case of taxable value determined by the customs agencies;

1.4) To consult for explanation and clarify the doubtful question of the customs agencies on the declared value;

1.5) To conduct customs clearance in case of exported goods without official price at the time of registering declaration; or imported goods that must delay the determination of taxable value, on the basis of the assurance of payable tax has been made.

2) To request in writing for the change of order to apply the deductible value method and the calculated value method.

3) To complaint or proceed against the determination of the taxable value of the customs agencies in accordance with the law regulations on complaints and denunciations and the law on procedures for settlement of administrative cases.

4) Other rights according to regulations of the Law on Tax Management.

Article 6. Obligations of customs declarants

1) To declare fully and accurately the costs related to goods purchase and sale for export, import and self-determine the taxable value of exported and imported goods under the provisions.

2) To submit taxable value declaration, documents, legal vouchers used to determine the taxable value with the customs declaration. To submit, present the documents for use as a basis for inspection and determination of the taxable value as the request of the customs authorities.

3) To join the explanation and submit to the inspection of customs agencies on the declared value. To bear responsibility for coordination with customs agencies in clarifying the doubtful question of customs agencies for the declared contents related to the taxable value.

4) To take responsibility before the law for the declared contents and results of self-determination of customs value aiming to calculate tax and customs Statistics.

5) To take responsibility for consultations invitation (Upon Form No.3 issued together with this Circular) sent by the customs agency according to the correct address declared in the customs declaration or the address registered with the customs agency but having no recipient.

6) To implement the assurance at the request of the customs agency stipulated in Article 25 of this Circular if wishing goods to be conducted customs clearance.

7) Other obligations according to regulations of the Law on Tax Management.

Article 7. Responsibilities of customs agencies

1) To keep confidential commercial information provided by the customs declarants related to declared value, including the kinds of information of the buyers, sellers and consignees, the domestic purchaser, export prices, import prices, prices for reselling domestic goods, the production cost of imported goods, except for the cases of being forced to supply to the relative agencies in accordance with law regulations.

2) To explain, guide the customs declarants to comply with the provisions of the Decree No.40/2007/ND-CP dated 16/3/2007 of the Government and guidance in this Circular.

3) To notify in writing to the customs declarants on:

3.1) Basis,  doubtful grounds in case of having doubt on the declared price rate for the items to be of the risk management List of imported goods on prices of General Department level or the risk management List of imported goods on prices of Department level (upon Form No.1 attached herewith);

3.2) Assurance rate in case of delaying or determining taxable value (upon Form No.2 attached herewith);

3.3) Taxable value, the basis and methods used to determine the taxable value in case of taxable value determined by the customs agencies (upon Form No.4 attached herewith);

4) To organize the implementation of consultation in accordance with correct order, procedures as guided in Article 26 of this Circular.

5) To publish the form of taxable value declaration on page of electronic information of Vietnam Customs and guide the customs declarants to declare suitably for each method of determining the taxable value.

6) To resolve complaints from the customs declarants on the determination of taxable value as prescribed by law.

7) Other responsibilities according to regulations of the Law on Tax Management.

Article 8. Powers of customs agencies

1) To check the contents of the declaration, determination of the taxable value of the customs declarants as guided in Chapter III of this Circular.

2) To require the customs declarants to submit and present documents and vouchers relating to the purchase, sale, payment for goods, documents of transport, insurance (if any) and sales cost-accounting after import to explain, clarify the doubtful question of the customs agencies for the declared value.

3) Determination of taxable value:

3.1) For exported goods: the customs agencies determine taxable value in the following cases:

3.1.1) Customs declarants may not determine the value or determine value not in compliance with principles and methods prescribed in Item I Chapter II of this Circular; do not declare or improperly declare the official price;

3.1.2) Illegal goods sale and purchase contract;

3.1.3) Contents between goods purchase and sale contract and the contents declared on the customs declaration are conflicted;

3.2) For imported goods: the customs agencies determine taxable value in the following cases:

3.2.1) Customs declarants may not determine the taxable value according to methods to determine value;

3.2.2) Failing to declare or declare improperly the must-to-plus amounts provided in this Circular.

3.2.3) The cases that the customs agencies reject the declared value specified in point 1.3.2.2 clause 1 Article 24 and point 4.4.1 clause 4 Article 26 of this Circular.

3.2.4) The cases that goods to be of the risk management list of imported goods on prices of the General Department level or the risk management List of imported goods on prices of the Department level with doubtful question on price rates, and customs declarants agree to pay tax at the price rates determined by the customs agencies under the form No.1 issued attached herewith.

3.2.5) The customs declarants do not comply with provisions in the Decree No.40/2007/ND-CP dated 16/3/2007 of the Government and guidance in the issuance attached herewith.

4) Other powers according to regulations of the Law on Tax Management.

Article 9. Documents, vouchers

Apart from customs vouchers as prescribed, the vouchers, documents which the customs declarants must hand in to the customs agencies as prescribed in this Circular are certified true copies of enterprises (except for the cases with specific requirement being the original), each type of voucher, document 01 copy. If there are doubtful questions on relevant documents, vouchers, the customs agencies must cross-check with the original to ensure the accuracy.

Chapter II

VALUE DETERMINATION FOR IMPORTED, EXPORTED GOODS

ITEM I. TAXABLE VALUE DETERMINATION FOR IMPORTED, EXPORTED GOODS

Article 10. Principle, method of determination

1) Principle: Taxable value for exported goods is the actual selling price at the exit gate (FOB, DAF prices) not including International insurance costs (I) and international transport costs (F) in accordance with the relevant documents.

2) Method of determination:

2.1) Actual selling price at the exit gate is the selling price stated in the purchase and sale contracts or the forms with legal validity equivalent to contracts, commercial invoices and relevant documents of the consignment in accordance with exported goods in reality.

2.2) Where dossiers are not lawful or contents of the documents are contradictory, the customs agencies determine the taxable value based on the order of sources of information prescribed in clause 5 Article 21 of this Circular and attached documents, papers, including:

2.2.1) Declarations of identical exported goods, similar exported goods to be the basis for determining taxable value, or/and

2.2.2) Invoices of identical exported goods, similar exported goods issued or allowed to use by the Ministry of Finance; or/and

2.2.3) Vouchers used for conversion into FOB price, DAF used to determine taxable value.

Article 11. Taxable value for exported goods which have not yet had official price at the time of registering declarations

1) For exported goods which have not yet had official price at the time of registering declarations due to the agreement in the goods purchase and sale contract that the time to close price is the time after goods were exported, customs declarants declare temporarily calculated price at the time of registering declarations; declare official price upon form No.5 issued together with this Circular and pay the tax difference (if any) within 10 days since the date of closing price. The customs agencies examine the declaration of the customs declarants, time to close price, conditions to accept the time to close price and implementation:

1.1) Handling the different taxation under the provisions on the handling of overpaid taxation of the Tax Administration Law and the guidance documents for the cases tax amount which is calculated by official price lower than the paid tax at the temporarily calculated price;

1.2) Issuing the decision to sanction administrative violations for the case customs declarants declare the official price not in compliance with the time limit specified in clause 1 of this Article;

1.3) Determining taxable value, defining tax, collecting fully taxation, fines for late payment (if any), issuing the decision to sanction administrative violations for the case customs declarants fail to declare or declare not in compliance with official prices.

2) Time to close price for a maximum period is 90 days since the date of registration of declarations for exported goods. Where the time to close price exceeds 90 days since the date of registration of declarations, Directors of the Customs Department of provinces and cities shall be assigned to inspect, review, decide the acceptance of the time to close price stated in the contract based on records and documents, actuality of exported consignment.

3) The time to close price is accepted if it meets fully the following conditions:

3.1) The goods sale and purchase contracts have agreement for the time to close price in compliance with export field;

3.2) The time to close price in reality is in compliance with the time to close price upon the agreement stated in the contract;

3.3) The official price is in compliance with actual price to make payment of exported goods in accordance with payment vouchers.

Where there are insufficient conditions to be accepted the time to close price, and the taxation is calculated according to the official price higher than the paid taxation under the temporarily calculated price, the customs declarants must pay fines for late payment of tax difference.

ITEM II. DETERMINATION OF TAXABLE VALUE FOR IMPORTED GOODS

Article 12. Principle and method of determination of taxable value

1) Principle: Taxable value for imported goods is the calculable actual price to the first entry gate.

2) Methods of determination: the calculable actual price to the first entry gate is determined by serial application of six methods to determine taxable value as guided in Article 13, 15, 16, 17, 18, 19 of this Circular and stopping right in the method of determining the taxable value (except for the cases of determining taxable value as prescribed in Article 20 of this Circular). The methods of determining the taxable value includes:

2.1) Method of transaction value;

2.2) Method of transaction value of identical imported goods;

2.3) Method of transaction value of similar imported goods;

2.4) Method of deducted value;

2.5) Method of calculated value;

2.6) The deductive method.

Where the customs declarants request in writing, the order to apply the method of deducted value and method of calculated value is changeable to each other.

Article 13. Method of transaction value

Taxable value of imported goods firstly must be determined by transaction value.

The transaction value is the price that the actual buyers paid or shall  pay to the sellers to purchase imported goods, after having been adjusted in accordance with provision in Article 14 of this Circular.

The paid actual price or payable price is determined by the total amount that buyers has paid or will pay directly or indirectly to sellers to purchase imported goods

1) The transaction value is applied if it satisfies fully the following conditions:

1.1) Buyers are not restricted the right to determine or use goods after being imported, unless the following restrictions:

1.1.1) Restrictions stipulated by the laws of Vietnam, such as regulations on imported goods being forced to label in Vietnamese, conditioned imported goods or imported goods which are subject to an inspection form before being conducted customs clearance;

1.1.2) Restrictions on location to sell goods;

1.1.3) Other restrictions not affecting value of goods.

These restrictions are one or more factors relating directly or indirectly to imported goods, but not making increase or decrease of real paid prices for such goods.

Example: The automobile sellers require buyers not to sell or display imported automobiles prior to the time to introduce this model of automobiles to market.

1.2) The price or sale does not depend on the conditions or payments, but because it is not determined the value of the goods need to determine taxable value.

Example:

- Sellers determine the selling price of imported goods with condition that buyers also will purchase a certain quantity of other goods.

- Prices of imported goods depend on prices of other goods that the importer will re-sell to exporters.

Where the sale and purchase of goods or prices of goods depending on one or a number of conditions, but the buyers have the objective documents to determine the impact level in money of such dependence is still considered as it has met these conditions; when determining the taxable value, it must be added the amount to be reduced due to the impact of that dependence on the transaction value.

1.3) After reselling, transferring or using imported goods, other than the must be added amount stipulated in point 1.2.6 clause 1 Article 14 of this Circular, buyers are not required to make additional payment from collected amount due to determination of imported goods.

1.4) Buyers and sellers have no special relationship or if any, such special relationship does not affect the transaction value.

1.4.1) In cases buyers and sellers have a special relationship but not affecting the transaction value, the customs declararants must declare for this.

1.4.2) On the basis of available information, where the customs agency suspects that the special relationship affects the transaction value, the customs agency must notify promptly in writing upon the form No.1 issued attached herewith to customs declarants on the doubtful grounds right the date of registration of declarations or the next working day.

1.4.3) Customs agencies must create conditions for customs declarants to exercise the right of consultation, explanation and provide additionally relevant information to clarify the special relationship between the buyers and the sellers not affecting the transaction value of imported goods mentioned in point 1.4.4 of this clause.

1.4.4) The special relationship between the buyers and the sellers does not affect the transaction value if satisfying one of two conditions as follows:

1.4.4.1) Although there is the special relationship, but the sale and purchase transaction conducted as transaction between buyers and sellers having no special relationship:

- For example:

+ Sale and purchase prices of the imported goods are negotiated and agreed in commercial contracts in a manner consistent with practices of negotiation, of normal price agreement of such goods line or in a way that seller offers a purchase price of goods to buyers without special relationship.

+ + Sale and purchase price of imported goods includes general expenses and profits, which correspond to the general costs and profits of the sale of goods at the same class or category.

Customs agencies must examine the method that buyers and sellers establish the  sale and purchase relationships and the method of negotiation to achieve the declared price, so that they can make a conclusion that the declared value has been affected by the special relationship or not.

1.4.4.2) Or the transaction value approximates to one of the herein values ​​of lot of consignment to be exported to Vietnam in the same day or within a period of 60 days before or after the date of exporting lot of consignment being proven:

- Taxable value is determined by the method of the transaction value of identical or similar imported goods to be sold to other importers without special relationship with the exporters (sellers);

- Taxable value of identical or similar imported goods is determined by the method of the deducted value provided in Article 17 of this Circular;

- Taxable value of identical or similar imported goods is determined by the method of the calculated value provided in Article 18 of this Circular.

1.4.4.3) Taxable values provided in point 1.4.4.2 of this clause aim to compare to and it must adjust the taxable value of identical imported goods, similar imported goods to the same condition of purchasing, selling with imported goods being proven:

a) Adjusting to the same conditions of purchase and sale: The adjustment of the taxable value of identical or similar imported goods to the same condition of purchasing, selling with goods lot being proven ​​is made under the guidance in point 2.2 clause 2 Article 16 of this Circular.

b) The adjustment of the must be added, deducted amounts under the guidance in Article 14 of this Circular.

2) Transaction value includes the following items:

2.1) Purchasing price stated in the commercial invoice;

2.2) The adjustments are under the guidance in Article 14 of this Circular;

2.3) The amounts that purchasers must pay but not included in the purchasing price stated in the commercial invoice, including:

2.3.1) Advance primitives, advance payments, deposits for the production, purchase and sale, transportation, goods insurance.

2.3.2) Indirect payments to the sellers such as the amounts that the buyers must pay to third persons at the request of the sellers, the amounts which are paid by offsetting debts.

3) Determination of taxable value for goods with imported software:

3.1) Taxable value is the actual value which is paid or payable for the imported goods being intermediaries, not including the value of the software used for data processing device that it contains with the condition that value of the software is separated from the value of intermediaries in the commercial invoice;

3.2) Taxable value is the actual value which is paid or payable for the imported goods including value of the software and cost for recording or installing software into the imported goods, if it is of one of the following cases:

3.2.1) Value of the software is not separated from the value of intermediaries in the commercial invoice;

3.2.2) The actual value to pay or payable for software relating to the added adjustments in accordance with provisions in Article 14 of this Circular;

3.2.3) Software to be recorded, installed or integrated in the imported goods not being intermediaries.

4) Vouchers, documents to determine value according to this method include:

4.1) Vouchers, documents proving special relationship not affecting the transaction value (if any);

4.2) Vouchers, documents relating to the amounts that purchasers must pay but not calculated yet in the purchasing price stated in the commercial invoices (if any);

4.3) Vouchers, documents relating to the added adjustments (if there are the added adjustments);

4.4) Vouchers, documents relating to the deducted adjustments (if there are the deducted adjustments);

4.5) Other vouchers, documents relating to the determination of taxable value upon transaction value declared by customs declarants.

Article 14. The adjustments

1) Added adjustments:

1.1) Condition for added adjustments: Only adjusting adding when there are fully the following conditions:

1.1.1) Being paid by purchasers and not yet calculated in the actual price which is paid or payable;

1.1.2) it must be related to imported goods;

1.1.3) There are objective data, quantity in accordance with relative legal documents.

Where the imported consignment having added adjustments but there are no objective data, quantity to determine taxable value shall not determine by the transaction value and must move to the next method.

1.2) The added adjustments:

1.2.1) Sales commission costs, brokerage fees. Where these costs include the payable taxes in Vietnam is not required to add the taxes to taxable value of imported goods.

1.2.2) Packaging costs are considered consistent with imported goods, including price to purchase packaging and other costs related to the purchase, sale and transport of packaging to the place of packaging, preservation of goods.

Containers, barrels, racks used as a means to package for transporting cargos and used many times is not considered as packaging associated with goods so that they are not the must be added costs for packaging associated with goods.

1.2.3) Costs for packaging goods include the following costs:

1.2.3.1) Costs for packaging materials including packaging materials purchasing prices and other costs related to the purchase, sale and transportation of packaging materials to the place to make the package.

1.2.3.2) Costs for labor on packaging, include staffs rent and costs related to hiring labor to package goods being determined taxable value.

Where the buyers have to bear the expenses on accommodation and transportation for workers during the implementation of the packaging, the costs are also belong to the labor cost for packaging.

1.2.4) Assistances: The value of goods and services provided free of charge or reduced cost by buyers are transferred directly or indirectly to the producers or sellers to produce and sell exported goods to Vietnam.

1.2.4.1) The assistances include:

a) Raw materials, component parts, accessories and composed similar products are included in imported goods.

b) Raw materials, materials, consumed fuel in the process of producing imported goods.

c) Instruments, tools, dies, molds, models and similar products used to produce imported goods.

d) Design drawings, technical drawings, art design, plan of implementation, design of construction, model design, diagrams, schemes and similar products and services made in foreign countries and need for the process of producing imported goods.

1.2.4.2) Value determination of the assistances:

a) If assistant goods and services are purchased of a person without special relationship to supply to seller, the value of the assistances is the purchasing price of such assistant goods and services.

b) If assistant goods and services produced by the importers or persons having special relationship with the importers to supply to the sellers, the value of the assistances is the costs of producing such assistant goods and services.

c) If assistant goods and services are made by the oversea-based production establishment of buyer but having no documents and vouchers to account separately for such assistant goods and services, the value of the assistances are determined by allocating the total cost of production in the same period of such establishment for the amount of assistant goods and services produced.

d) The assistances rent or borrowed by buyers, the value of the assistances are costs of renting or borrowing.

e) The assistances are goods which were used, the value of the assistances are the remaining value of such goods.

g) Assistant goods processed by buyers before handing over to the sellers for use in producing the imported goods must include the added value due to process into the value of the assistances.

h) The assistances which are reduced price to exporter by buyers, it must be added the reduced value into taxable value.

i) If, after the production of imported goods are completed but producers still obtain surplus raw materials, material and waste materials from assistant goods, the value of recovery from such surplus raw materials, materials and waste materials are subtracted from the value of assistances, if there is data showing the value of waste materials or surplus raw materials, materials.

Value of the assistances is determined, including expenses related to the purchase and sale, transportation and insurance to the place of producing imported goods.

1.2.4.3) Allocating value of the assistance amounts for imported goods.

a) Principles of allocating value of assistances.

a.1) Value of the assistances must be allocated all for imported goods;

a.2) The allocation must be formulated lawful documents;

a.3) The allocation must comply with the regulations, accounting standards of Vietnam.

b) Method of allocating value of the assistances:

The customs declarants self-allocate the assistances for imported goods in accordance with one of the following methods:

b.1) Allocating for imported goods in the first imported consignment;

b.2) Allocating according to number of goods units which were produced to the time of importing for the first consignment;

b.3) Allocating for all products expected to be produced in accordance with agreement of purchase and sale between buyer and seller (or producers);

b.4) Allocating according to the principle of descending or ascending;

b.5) Apart from the above methods, buyers may use other methods of allocation with the conditions that it must comply with provisions of law on regime of accounting and must be made into vouchers.

1.2.5) Fee of copyright, licenses:

1.2.5.1) Condition for adjusting adding: Only adjusting adding when there are fully the following conditions:

a) It must be paid for the use of intellectual property rights relating to imported goods being determined taxable value.

Example: A person who imports Betacam tape containing video content, as agreed between the importer and the exporter, importer shall pay royalties to be broadcasted such movie from time to time and certain number of times of broadcasting. In this case, the imported goods being Betacam tape, so the royalties are paid for using video content contained in the tape, not paying for the royalties for imported tape, so it shall not plus the copyright fees to the transaction value of imported goods being Betacam tape.

b) Due to the purchaser must pay directly or indirectly, as a condition for the goods sale transaction being determined taxable value, means buyers must pay copyright fees, license fees as part of activities of purchase, sale of imported goods.

c) Not yet calculated in the actual price paid or payable of imported goods being determined taxable value.

1.2.5.2) Not required to add to taxable value in the following cases:

a) The amounts that buyers must pay for the right to re-produce imported goods or copy the art works in Vietnam.

b) The amounts that buyers must pay for the right of distribution or reselling imported goods if this payment is not a condition stipulated in section b point 1.2.5.1 of this clause of the sale of imported goods.

Where the payments for the right to reproduce, distribute or resell import goods which have been included in the actual price paid or payable shall not be deducted from the taxable value of goods Import.

1.2.5.3) Bases to determine: payments documents of royalty, license fees or other lawful documents representing the payment obligations for these items.

1.2.5.4) Time to determine:

a) Where royalty, license fee determined at the time of registering declarations, the declarants self-declare royalty and license fee at the corresponding criterion in the value declaration, self-determine value, calculate and pay tax in accordance with provisions;

b) Where royalty, license fee can not be determined at the time of registering declarations due to depend on sale revenue after the import or other reasons specified in the purchase and sale contracts or separate written agreement on the payment of royalties, license fees, the procedures for declaration and inspection are carried out as follows:

b.1) For the customs declarants:

b.1.1) At the time of registering declarations, declare clearly the reason not yet declared royalties, license fees at the corresponding criterion in the value declaration;

b.1.2) Implementing the declaration, calculating payable tax for royalty, the license fee actually paid under the form No.5 issued attached herewith, and fully pay the taxation within 10 days since the date of actually paying licensing fees, license fees in accordance with the goods purchase and sale contracts or separate written agreement. Time to calculate tax is the date that the customs declarant registers the customs declarations.

b.2) For the customs agencies:

b.2.1) Checking relative documents and declared contents of the customs declarants provided in section b.1 point 1.2.5.4 of this clause.

b.2.2) Implementing the determination of taxable value, tax definition, the full collection of taxation, fines for late payment (if any), issuing the decision to sanction administrative violations for the case the customs declarants fail to declare or declare incorrect royalties, actual payable license fees.

b.2.3) Issuing the decision to sanction administrative violations for the case the customs declarants declare not in compliance with time limit provided in section provided in section b.1 point 1.2.5.4 of this clause for the royalties, actual payable license fees.

c) Where royalty or license fee is calculated partly into imported goods, partly based on factors not related to imported goods, then:

c.1) Adding to transaction value, if the quantified, objective data to define, separate from royalty, the license fees related to imported goods.

c.2) Not to determine taxable value according to the method of transaction value and must move to the next method, if it may not define, separate from royalty, the license fees related to imported goods.

1.2.6) The amounts that the importers must pay from the collected amount after re-selling, disposing or using imported goods are transferred directly or indirectly to the sellers in any form. Procedures of declaration, tests are carried out as follows:

1.2.6.1) Where this amount may be determined at the time of registering the declarations, the customs declarants self-declare at the corresponding criterion in the value declarations, self-determine value, calculate and pay tax in accordance with provisions;

1.2.6.2) Where at the time of registering the declarations it can not be determined the must be added amounts due to depend on sale revenue after the import or other reasons specified in the purchase and sale contracts or separate written agreements, then:

a) For the customs declarants:

a.1) At the time of registering the declarations, declare clearly the reason that has not declared yet due to importers must pay from the amount collected after reselling, defining, using imported goods at the corresponding criterion in the value declarations;

a.2) Implementing the declaration, calculating payable tax for the paid actual fees under the form No.5 issued attached herewith, and fully pay the taxation within 10 days since the date of actually paying in accordance with the goods purchase and sale contracts or separate written agreements. Time to calculate tax is the date that the customs declarant registers the customs declarations.

b) For customs agencies:

b.1) Checking relative documents and declaration of the customs declarants provided in point a of this clause;

b.2) Implementing the determination of taxable value, tax definition, the full collection of taxation, fines for late payment (if any), issuing the decision to sanction administrative violations for the case the customs declarants fail to declare or declare incorrectly the must-pay actual fees;

b.3) Issuing the decision to sanction administrative violations for the case the customs declarants declare not in compliance with time limit provided in point a of this clause for the must-pay actual amount from the amount collected after reselling, defining, using imported goods.           

1.2.7) Transportation costs and every other costs directly related to transportation of imported goods until the goods have been delivered to the first entry gate:

1.2.7.1) The expenses mentioned in this point include: The cost of loading, unloading and transportation of goods, surcharges for old ship, the cost of hiring types of containers, barrels, racks used as a means to package for transporting cargos and used many times.

1.2.7.2) The expenses mentioned in this point not including:

a) Costs of loading, unloading goods from vehicles to the first entry gate if these costs are separated from international transport costs (F). Where these cost included in the international transport costs or included in the price actually paid or payable are not allowed to separate (deduct) from the taxable value of imported goods.

b) Other expenses arise after the imported goods are loaded, unloaded at the first entry gate.

1.2.7.3) Value of this adjustment is determined on the basis of transportation contracts, vouchers, documents related to cargos transportation.

1.2.7.4) In case the shipments with a variety of different goods but transportation contracts or vouchers, documents related to cargos transportation not specified in detail for each type of goods, the customs declarants self-allocate these costs for each type of goods by using the methods of division according to the following order of priority:

a) To allocate on the basis of freight schedule of transporters;

b) To allocate by weight or volume of goods;

c) To allocate by proportion to the purchasing value of each type of goods on the total value of shipments.

1.2.7.5) Where the purchasing price not excluded transportation costs but the buyer does not have transportation contracts, vouchers, documents related to cargos transportation, or has but not legitimate, are not applied the method of transaction value.

1.2.8) Cost for insurance of imported goods to the first entry gate.

1.2.8.1) Where the importers do not purchase insurance for goods, they shall not be required to add this cost into taxable value.

1.2.8.2) Premium paid for the whole shipment including many different kinds of goods but not been yet specified in detail for each type of goods, shall distribute according to the value of each type of goods.

1.2.9) The costs mentioned in point 1.2.7 and 1.2.8 of this clause in case of the must be paid value added tax in Vietnam was included, it shall not be required to add this tax into taxable value.

2) The deducted adjustments:

2.1) Conditions for deducted adjustment: Only adjusting deduction when there are fully the following conditions:

2.1.1) There are quantified, objective data in accordance with the relative legal documents and available at the time of determining value;

2.1.2) Being Calculated in the actual price paid or payable;

2.1.3) Complying with Vietnam law regulations on accounting.

2.2) The deducted adjustments:

2.2.1) Costs for activities arising after importing goods, include costs of construction, architecture, installation, maintenance or technical assistance, technical advice, supervision costs and similar costs.

2.2.2) Transportation and insurance costs arising after the goods have been transported to the first entry gate. Where these costs are related to many different kinds of goods but not been stated in detail for each type of goods, they must be allocated according to the principles referred to in point 1.2.7 and 1.2.8 clause 1 of this Article.

2.2.3) The taxes, fees and charges payable in Vietnam were included in the purchasing price of imported goods. Where the fees, charges related to many different kinds of goods not directly be determined for each type of goods, then they shall be distributed by proportion of the purchasing value of each type of goods on the total value of shipments.

2.2.4) Discounts:

2.2.4.1) Conditions for deducting the discounts: Only adjusting deduction when there are fully the following conditions:

a) Discounts to be of one of types of discounts as follows:

a.1) Discounts upon the commercial level of transactions of goods sale and purchase;

a.2) Discounts upon quantity of goods sale and purchase;

a.3) Discounts upon form and time to make payment.

b) Discounts were made ​​in writing before loading goods to the vehicles in the goods exporting countries;

c) Having quantified, objective data in accordance with the lawful documents to remove this discount out of the transaction value. These documents are filed with the customs declarations;

d) Making payments through banks by modes of L/C or TTR for all imported goods under the sale and purchase contract.

e) Declared value and the actuality on quantity of imported goods; commercial level, form and time to make payment must conform to the list of publishing prices discount of sellers.

2.2.4.2) Procedures to declare and inspect the discounts:

a) For customs declarants:

a.1) To declare the discount amounts in the corresponding criterion in the value declaration, but not yet implemented the deducted adjustment for the discount amounts in the value declaration;

a.2) To calculate, pay tax at the price not yet deducted the discount amounts;

a.3) Filing dossiers requesting for consideration to be deducted the discount amounts when the import were completed and entire goods to be of the contract were made payment, including the following documents:

a.3.1) A Written request for being deducted the discount amounts after the import was completed and entire goods to be of the contract were made payment (the original);

a.3.2) A list of monitoring the actuality of goods import to be of the contract under the form No.6 issued attached herewith (the original) for the case goods in the same contract are imported for many different trips (many declarations);

a.3.3) A list of publishing the discount of sellers according to quantity of purchased and sold goods; or the commercial level of goods purchase and sale transaction; or form and time to make payment;

a.3.4) All customs declarations of imported goods to be of the contract and the enclosed customs dossiers;

a.3.5) Payment vouchers of all goods to be of the contract.

b) For customs agencies:

Directors of Departments of Customs of provinces, cities where the customs declarants apply dossiers requesting for consideration to be deducted the discount amount are responsible for:

b.1) Inspecting records, documents and the relevant documents together with the written request of the customs declarants;

b.2) Inspecting and comparing the declared value and the actuality on quantity; commercial level, form and time to make payment with the List of publishing the discount of sellers;

b.3) Considering or deciding on deducted adjustment for the discount amount if it satisfies fully all conditions stipulated in point 2.2.4.1 of this clause with a value of discount amount not exceed 5% of the total value of shipments. Where the discount amount at more than 5% of the total value of shipments, the customs agencies propose, report and send the entire records to the General Department of Customs for opinions before deciding to adjust or not;

b.4) Handling the tax difference due to the discount amount to be deducted is implemented according to the regulations on handling overpaid taxation in the Tax Administration Law.

2.2.5) The costs borne by the Buyers relating to the marketing of imported goods, including:

2.2.5.1) Costs for research, market survey on the products about to be imported;

2.2.5.2) Costs for advertisement of brands, trade marks of imported goods;

2.2.5.3) Costs related to the exhibition, introduction of newly imported products;

2.2.5.4) Costs for participation in fairs and trade exhibitions on new products;

2.2.5.5) Costs for inspection of the quantity, quality of goods before they are imported. Where these costs are agreed between buyers, sellers and are part of the actual price paid or payable which are paid by the buyers to the sellers shall not be deducted from the transaction value;

2.2.5.6) Cost for opening L/C to pay for the imported consignment, if these costs are paid by buyers to the bank that represented them to make payment for goods.

2.2.6) The corresponding interest to interest rates according to the financial agreement of the buyers and relating to the purchase of imported goods: only being adjusted to deduct the interest from the transaction value when satisfying all the conditions as follows:

2.2.6.1) Financial agreement is made in writing;

2.2.6.2) Customs declarants may prove that at the time of making the financial agreement​​, the declared interest rate is not greater than normal credit interest rate in the exporting country, but not exceeding the ceiling interest rate announced by the Bank State of Vietnam;

2.2.6.3) Having quantified, objective data to be deducted the interest from the transaction value.

Article 15. Method of transaction value of identical imported goods

In case of unable to determine taxable value under the method of transaction value as guided in Article 13 of this Circular, taxable value of imported goods is determined by the method of the transaction value of identical imported goods.

The method of the transaction value of identical imported goods is implemented as guided in Article 16 of this Circular, in which the group of words “similar imported goods” is replaced by the group of words “identical imported goods”.

Article 16. The method of the transaction value of similar imported goods

1) In case of unable to determine taxable value under the method as guided in Article 13 and Article 15 of this Circular, then taxable value of imported goods is determined by the method of the transaction value of similar imported goods, with condition that similar imported goods have been accepted by customs agencies to determine taxable value by the method of transaction value and with the same conditions of sale and purchase, conditions on export time with the imported goods being determined taxable value under the guidance in clause 2 of this Article.

Where unable to find similar imported goods lot with the same conditions of purchase and sale with the lot of imported goods being determined taxable value, then select a similar imported goods lot which is different from conditions of purchase and sale, but it must be adjusted to have the same conditions of sale and purchase.

2. Conditions to select similar imported goods lot:

The similar imported goods lot is selected if it satisfies the following conditions:

2.1) Condition on export time:

The similar imported goods lot must be exported to Vietnam on the same day or with a period of 60 days before or after the date of export with imported goods being determined taxable value.

2.2) Conditions of purchase and sale:

2.2.1) Conditions on commercial level and quantity:

2.2.1.1) Similar imported goods lot must have the same conditions on commercial level and quantity with imported goods lot being determined taxable value;

2.2.1.2) If unable to find a lot of imported goods referred to in point 2.2.1.1, select a imported goods lot which has the same commercial level but different from quantity, then adjust the transaction value of similar imported goods to become the same quantity with shipments being determined taxable value;

2.2.1.3) If unable to find a lot of imported goods referred to in point 2.2.1.1 and 2.2.1.2, select a imported goods lot which is different from commercial level but has the same quantity, then adjust transaction value of similar imported goods lot to become the same commercial level with shipments being determined taxable value;

2.2.1.4) If unable to find a lot of imported goods referred to in point 2.2.1.1, 2.2.1.2, 2.2.1.3, select a imported goods lot which is different from both commercial level and quantity, then adjust transaction value of similar imported goods lot to become the same commercial level and quantity with shipments being determined taxable value.

2.2.2) condition on distances and modes of transport, insurance:

The similar imported goods lot has the same distances and modes of transport, or has been adjusted to have the same distances and modes of transport with shipments being determined value.

If there is a significant difference on the premium, then adjust to have the same conditions with shipments being determined taxable value.

2.3) When applying the method of the transaction value of similar imported goods, if unable to find similar imported goods produced by the same producers or other producers who are authorized, then may be allowed to consider goods produced by other producers and must have the same origin.

2.4) When determining the taxable value by this method that may determine from two transaction value of similar imported goods or more, after they have been adjusted to have the same conditions of purchase and sale with shipments being determined taxable value, taxable value is the lowest transaction value.

If during the time of conducting customs procedures without sufficient information to select the identical or similar imported goods with shipments being determined taxable value, not to determine the taxable value for imported goods under the guidance in Article 15 or Article 16 of this Circular, but must move to the next method.

3) Vouchers and documents to determine the taxable value by this method include:

3.1) Customs declarations and value declarations of similar imported goods;

3.2) Transportation contract of similar imported goods (if there is an adjustment for this cost);

3.3) Insurance contract of similar imported goods (if there is an adjustment for this cost);

3.4) List of export sale price of the foreign manufacturer or seller (if there is an adjustment on the quantity and commercial level);

3.5) Other records, legal documents which are necessary and related to the determination of taxable value.

Article 17. Method of deducted value

1) In case of unable to determine taxable value under the method as guided in Article 13, Article 15, Article 16 of this Circular, the taxable value of imported goods is determined by the method of the deducted value, based on the unit price of imported goods, identical imported goods or similar imported goods in the domestic market of Vietnam and minus (-) the reasonable expenses, profits earned from the sale of imported goods.

Not to apply this method if goods are selected to determine selling unit price to be of one of the following cases:

- Have not been sold in domestic market of Vietnam or the sale has not been settled on vouchers, books keeping as prescribed by law on Vietnam accounting;

- Related to the assistances due to any person to supply, referred to in point 1.2.4.1 clause 1 Article 14 of this Circular.

2) Conditions to select the selling unit price in Vietnam market:

2.1) The selling unit price in Vietnam market must be the selling unit price of imported goods being determined taxable value, identical imported goods or similar imported goods which are sold in original status as when being imported.

2.2) Selected selling unit price is the selling unit price corresponding to the volume of goods sold with the largest cumulative number at level sufficient to form the unit prices; goods were sold right after being imported, but not exceeding 90 days after the date of import of the goods being determined taxable; domestic buyers and sellers have not got any special relationship.

For example: The goods lot A includes many items in which item B is required to determine taxable value under the deducted method. The goods lot A is imported on 01/01/2005. A goods lot in which has an item identical to item B previously imported and sold for many domestic buyers at the different price rates and different time as follows:

Unit price

Quantity/one time

Sale time

Accumulation

900 dong/piece

50 pieces

28/3/2005

100 pieces

30 pieces

15/1/2005

20 pieces

3/3/2005

800 dong/piece

200 pieces

20/1/2005

450 pieces

250 pieces

12/2/2005

Total:

 

550 pieces

In the above example, the unit price selected for deduction is 800 dong/piece corresponding to the largest number of sale (450 pieces), at level sufficient to form unit price. This unit price satisfies the conditions on selection of selling unit price, that is:

- Having the largest number of accomulation (450 pieces).

- Sale time is within 90 days since the date of import.

3) Principle of deduction:

The determination of the deductible amounts must be based on accounting data, lawful documents available and recorded, reflected in accordance with the regulations, standards of Vietnam accounting.

The deductible amounts must be the amounts which are allowed to settle into reasonable expenses of the enterprises in accordance with law on Vietnam accounting.

4) The deductible amounts from selling unit price:

The deductible amounts from the selling unit price is the reasonable costs and profits earned after selling goods in the Vietnam market, including the following amounts:

4.1) Transportation costs, premiums and costs for other activities related to the transport of goods after being imported, specifically:

4.1.1) Transportation costs, premiums and other costs related to the transport of goods arising from the first entry gate to the warehouse of the importer or location of goods delivery in the interior of Vietnam;

4.1.2) Transportation costs, premiums and other costs related to transport from the warehouse of the importer in the intetrior of Vietnam to the location of sale, if the importer must bear these costs.

4.2) The taxes, fees and charges payable in Vietnam when importing and selling imported goods in the Vietnam domestic market.

4.3) Commission or overhead expenses and profit related to the sale activities of imported goods in Vietnam.

4.3.1) Where the importer is the sale agent for foreign traders, the commissions shall be deducted. If the commission included expenses mentioned in point 4.1 and 4.2 of this clause, these expenses shall not be deducted more.

4.3.2) In case the import by the mode of definitive purchase and sale, overhead expenses and profit shall be deducted: overhead expenses and profit must be considered generally when determining the deductible value. The determination and allocation of overhead expenses and profit for the imported goods lot must be implemented according to the regulations and accounting standards of Vietnam.

Overhead expenses include direct costs, indirect costs for the import and sale of goods in the domestic market, such as goods marketing costs, the cost of storage and preservation of goods before the sales, cost of management activities for the import and sales, ...

Bases to determine the deductions is the data recorded and reflected in the vouchers, books keeping of the importers in accordance with regulations, accounting standards of Vietnam. This data must correspond to the data obtained from the sale and purchase activities of imported goods with the same class or category in Vietnam.

5) For goods sold not in the original status as imported:

5.1) If unable to find a selling unit price of goods sold in the original status as imported, then the selling unit price of imported goods which was spent the course of outsourcing, domestic further processing shall be applied and the costs of outsourcing, processing to enhance the value of goods shall be subtracted with the condition that it can be quantified the cost of outsourcing, dommestic further processing and the costs mentioned in clause 4 of this Article. Where unable to separate these enhanxe costs from the sale price, the method of deducted value shall not be applied and it must move to the next method.

5.2) If, after being processed, imported goods remain its special characteristic, nature and function as they are imported, but they are only as part of the goods sold in the domestic market, the method of deducted value shall not be applied and it must move to the next method.

5.3) If after being processed, imported goods do not remain its special characteristic, nature and function as they are imported and no longer be recognized the initial imported goods, the method of deducted value shall not be applied and it must move to the next method.

6) Vouchers and documents to determine the taxable value upon this method include:

6.1) A sale invoice issued or allowed to use by the Ministry of Finance;

6.2) A sale agent contracts if the importer is a sale agent of the exporter. This contract must be stated specifically the commission that the agent is enjoyed, the types of expenses that the agent must pay;

6.3) A written explanation on sales revenue and vouchers, books keeping reflecting the expenses mentioned in clause 4 of this Article;

6.4) Declarations and value declaration of the goods lot selected for deduction;

6.5) Other necessary document for inspection, determination of taxable value.

Article 18. Method of calculated value

1) If unable to define taxable value upon the method guided in Article 13, 15, 16, 17 of this Circular, taxable value of imported goods is determined upon the method of calculated value. The calculated value of imported goods includes the following costs:

1.1) Direct costs to produce the imported goods: The cost price or value of materials, the cost of the production process or other processing used in producing the imported goods. These expenses include the following costs:

1.1.1) The costs provided in point 1.2.1, 1.2.2, 1.2.3 clause 1 Article 14 of this Circular;

1.1.2) Value of the assistances following the guidance in point 1.2.4.1 clause 1 Article 14 of this Circular

1.1.3) Only be included in the taxable value the value of the support products specified in section d point 1.2.4.1 clause1 Article 14 is done in Vietnam if the producer bears costs for such support products.

1.2) Overhead expenses and profit arising from the sale activities of goods having the same class or category with imported goods being determined its value, are produced in the exporting countries to sell goods to Vietnam. The profit and overhead expenses should be considered generally when determining the calculated value.

Overhead costs include all direct or indirect costs of the process of production and sale for export of goods, but not been calculated under the guidance referred to in point 1.1 of this clause.

1.3) The transportation cost, insurance and other costs related to the transport of imported goods under the guidance in point 1.2.7 and 1.2.8 clause 1 Article 14 of this Circular.

2) Bases to determined the calculated value:

To be data recorded and reflected in the vouchers, books keeping of the producers unless the data is not consistent with the data collected in Vietnam. This data must correspond to the data obtained from the activities of production, sale and purchase of imported goods with the same class or category produced by the producers in the exporting countries for export to Vietnam.

3) Vouchers and documents to determine the taxable value upon this method include:

3.1) A written explanation of the producers on the expenses mentioned in point 1.1 and 1.2 clause 1 of this Article, together with certified true copies of the producer for the documents, accounting data consistent with this explanation;

3.2) A sale invoice of producer;

3.3) Documents on the expenses referred to in point 1.3 clause 1 of this Article.

Article 19. The deductive method

1) If unable to define the taxable value upon the methods as guided in Article 13, 15, 16, 17, 18 of this Circular, the taxable value is determined upon the deductive method based on the available, objective materials, data at the time of determining the taxable value.

Taxable value upon the deductive method is determined by the way of sequential and flexible application of methods of determining the taxable value as guided in Article 13, 15, 16, 17 and 18 of this Circular and stop at the method of determining the taxable value, with the condition that the application of so shall be in accordance with the provisions in clause 2 of this Article.

2) When determining the taxable value under this method, the customs declarants and customs agencies are not entitled to use the following values to determine the taxable value:

2.1) Selling prices in the domestic market of goods of the same class produced in Vietnam.

2.2) Goods selling price in the domestic market of the exporting countries.

2.3) Goods selling price for export to other countries.

2.4) Production costs of goods, excluding the costs of producing goods used in the calculated method.

2.5) Minimum taxable value.

2.6) The types of imposed or assumed prices.

2.7) Using the higher values in both replacement values to be taxable value.

3) Some flexible applications of the methods of determining taxable value:

3.1) Applying the method of the transaction value of identical imported goods or similar imported goods.

If there is not identical imported goods or similar imported goods exported to Vietnam on the same day or within a period of 60 days before or after the date of export of the imported goods lot being determined taxable value, then it shall be selected the identical imported goods or similar imported goods exported in the longer period, but not exceeding 90 days before or after the date of export of the imported goods lot being determined taxable value.

3.2) Applying the method of determining taxable value upon the method of deducted value by one of the following ways:

3.2.1) Within 90 days since the date of of import but unable to determine the unit price used for deduction, it is selected the unit price sold with the largest number of accumulation within 120 days since the date of import of the goods lot selected to deduct.

3.2.2) If there is the reselling unit price of  the imported goods or identical imported goods or similar imported goods to the person who has no special relationship with the importer, it shall be selected the reselling unit price of goods to purchaser who has special relationship with the condition that such special relationship does not affect the prices in the sale and purchase transaction.

3.3) Taxable value of imported goods is determined by the taxable value of the identical imported goods already determined upon the method of the deducted value or the method of calculated value.

3.4) Taxable value of imported goods is determined by the taxable value of similar imported goods already determined upon the method of the deducted value or the method of calculated value.

4) Apart from the examples mentioned in clause 3 of this Article, the flexible application of the method of determining taxable value is based on price database, the lawful objective documents, but not violating the provisions in clause 2 of this Article.

5) Documents and materials: include all documents and materials relating to the determination of taxable value upon this method.

Article 20. Taxable value for imported goods in some special cases

1) For goods have changed use purpose compared with the purpose has been determined which are not subject to the tax payment, subject to tax exemption, tax exemption consideration, the taxable value is determined as follows:

1.1) Goods already used in Vietnam: The imported taxable value is determined on the basis of the remaining use value of goods, calculated by duration of use in Vietnam (calculated from the time of import upon the declarations to the time of calculating tax) and is defined specifically as follows:

The use duration in Vietnam

The imported taxable value = (%) declared value at the time of registering the declarations

From 6 months or less (rounded up to 183 days)

90%

From 6 months to 1 year (rounded up to 365 days)

80%

From more than 1 year to 2 years

70%

From more than 2 years to 3 years

60%

From more than 3 years to 5 years

50%

From more than 5 years to 7 years

40%

From more than 7 years to 9 years

30%

From more than 9 years to 10 years

15%

More than 10 years

0%

If the declared price rates at the time of import of goods which are not subject to the tax payment or subject to tax exemption, tax exemption consideration is lower the price rates in the price database and the proportion specified above to determine the taxable value.

1.2) Goods not yet used in Vietnam: The taxable value is determined according to the principles and methods of determining the taxable value as guided in this Circular.

2) For waste materials obtained during the process of processing, outsourcing for foreign countries that the outsourcing hirer resells to the Vietnam side, the taxable value is determined as follows:

2.1) If having goods sale and purchase contracts, the taxable value is determined according to the principles and methods of determining the taxable value as guided in this Circular.

2.2) If having no goods sale and purchase contracts, the taxable value is determined in accordance with the provisions in clause 5 of this Article.

3) Taxable value of goods imported into Vietnam after hiring the foreign side for outsourcing is the amount of hiring outsourcing and value of materials used during the process of outsourcing supplied by the foreign side showed in the outsourcing contracts and the adjustment amount  prescribed in Article 14 of this Circular. Not to be included in the taxable value of the after-processed products the value of materials and raw materials exported from Vietnam being sent for outsourcing under the outsourcing contracts signed.

4) For imported goods which are goods brought for repair in the foreign countries, when they are imported back to Vietnam, they are subject to tax payment, the taxable value is the cost of repairs actually paid under the contract signed with foreign side, in accordance with lawful documents relating to the repair of goods.

5) Imported goods without sale and purchase contracts:

5.1) Imported goods as declared from 5 million dong or less, the taxable value is the declared value. Where there are grounds to determine the declared value not consistent, then the taxable value shall be defined by the customs agencies upon the principles and one of the methods of determining the taxable value as guided in this Circular;

5.2) Imported goods as declared at value of more than 5 million:

5.2.1) Goods imported by passengers on entry, goods imported for the purpose as awards in sports, cultural and artistic competitions; goods as gifts, samples, imported goods of providers of postal services, courier services:

a) For imported goods as machinery, equipment and other goods at value of from 50 million dong or more; imported goods as automobiles, motorcycles: The taxable value is determined according to principles and one of the methods of determining the taxable value defined in this Circular.

b) For other goods other than those specified in point a of this clause, the taxable value is the declared value. Where there are grounds to determine the declared value not consistent, then the taxable value shall be defined by the customs agencies upon the principles and one of the methods of determining the taxable value as guided in this Circular.

5.2.2) For imported goods which are goods of warranty; promotion, buying and selling, exchanging by border residents; other types without sale and purchase contract, then the taxable value shall be defined by the customs agencies upon the principles and one of the methods of determining the taxable value as guided in this Circular.

6) Goods imported surplus compared to the sale and purchase contracts signed with the foreign side:

6.1) Surplus imported goods are identical or similar goods compared to imported goods stated in the contract: The taxable value of surplus imported goods is determined by the method of determining the taxable value of the number of imported goods stated in the contract.

6.2) Surplus imported goods are goods different from imported goods stated in the contract, if it is allowed to import, the taxable value is determined on the principle of sequential application of the methods of determining taxable value as guided from Article 15 to Article 19 of this Circular, not to determine by the method of transaction value.

7) Imported goods not in compliance with the sale and purchase contracts signed with foreign side:

7.1) Imported goods not in compliance with the specification, if it is allowed to import, the taxable value is the value actually paid for imported goods. Goods not in compliance with specification mean actual imported goods with differences from color, size, style compared with description stated in the purchase and sale contract and these differences do not affect the must-be-paid actual price.

7.2) Imported goods not in compliance with the purchase and sale contract other than the case stipulated in point 7.1 of this clause, if it is allowed to import, the taxable value is determined on the principle of sequential application of the methods of determining taxable value as guided from Article 15 to Article 19 of this Circular, not to determine by the method of transaction value.

8) Actual imported goods with the difference on the quantity compared with the commercial invoice due to the nature of the goods, in accordance with the condition of delivery and payment in the purchase and sale contract, when determining the taxable value, the commercial invoices and  the purchase and sale contract must be based on (condition of delivery, the rate of tolerance, natural characteristics of the goods and conditions of payment). Taxable value is not lower than the value actually paid recorded in the commercial invoices and relevant documents.

9) Goods imported into Vietnam from bonded warehouse:

9.1) The taxable value is determined on the principle and the methods of determining taxable value as guided in this Circular.

9.2) Date of import is determined as:

9.2.1) Date of loading goods up to vehicles indicated in the bill of lading for the case person who brings goods into the bonded warehouse directly importing goods into Vietnam.

9.2.2) Date of registering declarations of importing goods from bonded warehouses into Vietnam, for other cases.

10) For imported goods which are goods to be rent, the taxable value is the price actually paid under the contracts signed with foreign countries, in accordance with lawful documents related to the renting of goods.

Chapter III

INSPECTION OF TAXABLE VALUE

ITEM I. INSPECTION OF TAXABLE VALUE OF EXPORTED GOODS DURING THE PROCESS OF CUSTOMS PROCEDURES

Article 21. Objects, principle of inspection and competence, criteria for making the List of risk management of exported goods on price of Department level and sources of information for making inspection price rates

1) Subjects of inspection: Customs dossiers or electronic customs dossiers, documents relating to the determination of the taxable value of exported goods subject to inspection of records or actual inspection of goods.

2) Principle of inspection: applying the principle of risk management on value

The inspection of the taxable value of exported goods is made on the basis of examining the items to be of the List of risk management of exported goods on prices of Department level (hereinafter referred to as the List of risk management of exported goods of Department level).

3) Competence to make, adjust, examine the List of risk management of exported goods of Department level:

3.1) Director of Customs Department of provinces and cities based on the situation of managing the export activities of each period and the actual export of goods to make, adjust the List of risk management of exported goods of Department level and examination price rates for use as a basis for examining the declared value, and send report to the General Department of Customs.

3.2) General Director of the General Department of Customs guides Customs Department of provinces and cities to amend, adjust the List of risk management of exported goods of Department level in cases the List of risk management of exported goods of Department level has not been yet appropriate to the reality.

4) The criteria for making the risk List of exported goods of Department level: Goods meet one of the following criteria:

4.1) Goods are natural resources, unprocessed minerals with tax rate of export duty, excluding crude oil;

4.2) Goods which are capable of commercial fraud.

5) Sources of information to make examination price rates:

5.1) FOB, DAF prices of identical exported goods, similar exported goods;

5.2) Sale price in the domestic market of identical exported goods, similar exported goods after subtracting value added tax, special consumption tax (if any) and lawful costs arising before exporting goods at exit border gate.

5.3) Other information collected by the customs agencies after converting into FOB, DAF prices.

Article 22. Inspection, handling results of examining taxable value

1) Inspecting the declared price rates:

1.1) For goods which are subject to the risk List of exported goods of Department level:

1.1.1) Contents of inspection: Compare the declared price rates with the inspection price rate at the risk List of exported goods of Department level.

1.1.2) Handling the inspection result:

1.1.2.1) If there is not doubful question on the declared price rates, the declared price rates of the customs declarants shall be accepted.

1.1.2.2) If there is any doubful question on the declared price rates, the inspection of procedures, records as provided in clause 2 of this Article shall be continued to implement.

1.2) For goods which are not subject to the risk List of exported goods of Department level, the declared price rates of the customs declarants shall be accepted.

2) Inspection of procedure, dossiers:

2.1) Contents of the inspection:

2.1.1) To inspect the legitimate of the goods sale and purchase contracts.

2.1.2) To inspect the suitability on contents between the goods purchase and sale contract with the declared contents in the declarations or the electronic declarations.

2.2) Handling the inspection result:

2.2.1) To determine the taxable value if the goods purchase and sale contract is not lawful or the contents the goods purchase and sale contract and the declared contents in the declarations or the electronic declarations are conflict.

2.2.2) To accept the declared price rates of the customs declarants, transfer to the post-clearance inspection force for the case having doubtful question on illegal documents or declared price rate lower than the price rate at the risk List of exported goods of Department level.

2.2.3) To accept the declared price rates of the customs declarants if the inspection result is not subject to the cases provided in point 2.2.1, point 2.2.2 of this clause.

3) The case of doubtful question on the declared price rates: Exported goods having declared price rates lower than the price rate at the risk List of exported goods; or the declared price rates are lower than the price rates of identical, similar exported goods at the price database of the customs agencies.

ITEM II. INSPECTION OF TAXABLE VALUE OF IMPORTED GOODS DURING THE PROCESS OF CUSTOMS PROCEDURES

Article 23. Objects, principle and competence, criteria for making the List of risk management of imported goods on price of General Department level, the List of risk management of imported goods on price of Department level  and sources of information for making inspection price rates

1) Subjects of inspection: Customs dossiers or electronic customs dossiers, documents relating to the determination of the taxable value of goods subject to inspection of records or actual inspection of goods.

2) Principle of inspection: Applying risk management on value

The inspection of the taxable value of imported goods is made on the basis of examining the items to be of the List of risk management of imported goods on prices of General Department level (hereinafter referred to as the risk List of imported goods of General Department level), the List of risk management of imported goods on prices of Department level (hereinafter referred to as the risk List of imported goods of Department level).

3) Competence to make, adjust, supplement, reject the risk List of imported goods of General Department level, the risk List of imported goods of Department level:

3.1) Competences of General Director of General Department of Customs:

3.1.1) To make, adjust the risk List of imported goods of General Department level and inspection price rate attached on the basis of:

3.1.1.1) The criteria to make the risk List of imported goods of General Department level as guided in point 4.1 clause 4 of this Article;

3.1.1.2) Management capabilities, the import situation of goods at each period on the scope of nation;

3.1.1.3) The report, recommendations of the provincial, city Department of Customs on making, adjustment of the risk List of imported goods of General Department level.

3.1.2) To supplement to the risk List of imported goods of General Department level the imported goods which were put into the risk List of imported goods of Department level by from 17 provincial, city Departments of Customs or more;

3.1.3) To remove from the risk List of imported goods of General Department level the imported goods which are no longer suitable to the criteria to make the risk List of imported goods of General Department level as guided in point 4.1 clause 4 of this Article;

3.1.4) To guide the provincial, city Departments of Customs to modify, supplement, adjust the risk List of imported goods of Department level in case the risk List of imported goods of such level is not suitable to the reality.

3.2) Competences of Directors of Departments of Customs of provinces, cities:

3.2.1) To make, adjust the risk List of imported goods of Department level and inspection price rate attached on the basis of:

3.2.1.1) The criteria to make the risk List of imported goods of Department level as guided in point 4.2 clause 4 of this Article;

3.2.1.2) Management capabilities, the import situation of goods at each period under the management scope, capabilities of commercial fraud;

3.2.1.3) Guidance of General Departments of Customs on amending, supplementing, adjusting the risk List of imported goods of Department level.

3.2.2) To supplement to the risk List of imported goods of Department level the goods which were removed from the risk List of imported goods of General Department level by the General Department of Customs;

3.2.3) To remove from the risk List of imported goods of Department level the goods which were put into the risk List of imported goods of General Department level by the General Department of Customs or the goods which are no longer suitable to the criteria as provided in point 4.2 clause 4 of this Article;

3.2.4) Periodically propose, report to the General Department of Customs the items which should be added, adjusted in the risk List of imported goods of General Department level and the price rates attached to on the basis of the active collection, synthesis, analysis of price data information.

4) The criteria to make the risk List of imported goods:

4.1) The criteria to make the risk List of imported goods of General Department level: Imported goods with great value and high tax rate of preferential import duty.

4.2) The criteria to make the risk List of imported goods of Department level: Imported goods out of the risk List of imported goods of General Department level meet one of the following criteria:

4.2.1) Having great value and high tax rate of preferential import duty;

4.2.2) Having great import turn-over, regular import with import duty;

4.2.3) Capabilities of commercial fraud.

5) Information source to make inspection price rates:

5.1) Information sources on prices from import dossiers declared by enterprises or determined by the customs agencies;

5.2) Information sources from offering letter of exporters;

5.3) Information sources from selling price in domestic market;

5.4) Information sources from business lines Associations;

5.5) Information sources from Internet, magazines, books;

5.6) Information sources from agencies, domestic organizations offer such as: information from local tax agencies; information from banks; information from the price appraisal agencies;

5.7) Information sources from agencies, international organizations offer such as: Information supplied by commercial counsellor; information supplied by the customs agencies of the countries; information supplied by the foreign price appraisal agencies;

5.8) Other information sources collected by the customs agencies under the regulation of making, managing and using price database.

Article 24. Inspection and handling of taxable value inspection results

1) For electronic customs procedures:

1.1) Form, level of taxable value inspection:

1.1.1) Form of inspection:

1.1.1.1) To inspect the declared value on the basis of information in the electronic customs declaration, electronic value declaration;

1.1.1.2) To inspect the declared value on the basis of information in the printed electronic customs declarations, printed electronic value declaration and documents together with declarations under form of paper.

1.1.2) Level of inspection:

1.1.2.1) For the form of declared value inspection on the basis of information in E-customs declaration, E-value declaration: to inspect the declared contents and declared price rates;

1.1.2.2) For the form of declared value inspection on the basis of printed E-customs declaration, printed E-value declaration and documents attached to the declaration under form of paper: to inspect the declared contents; the accuracy of records; legality of the documents; compliance with the principles and methods of determining value; declared price rate.

1.2) Competent to decide the form, level to inspect taxable value: Heads of Branches of Customs where electronic customs procedures are implemented to decide the form, the inspection level of taxable value.

The decision of Heads of Branches of Customs where electronic customs procedures are implemented must comply upon the principles of applying value risk management on the basis of the risk List of imported goods of General Department level and the risk List of imported goods of Department level provided in this Circular on the basis of information at the time of decision, showed by:

1.2.1) To decide on updating of the risk List of imported goods of General Department level and the risk List of imported goods of Department level into E-customs data processing system for flow distribution of customs dossiers; or

1.2.2) Directly decide on system when having doubtful information on taxable value.

1.3) Value inspection:

1.3.1) To inspect the declared value on the basis of information in E-customs declarations and E-value declarations:

1.3.1.1) Contents of inspection:

a) To inspect declared contents: to inspect all of the criteria stated in the E-customs declarations, E-value declarations declared by the importers in which the following criteria should be paid attention carefully to inspect:

a.1) Name of goods must be recorded completely, details of semaphore, brands, origin comply with the criteria in the value declaration. Specifically: declared names of goods are the common trade names together with the basic characteristics of goods, such as: Structure, component materials, components, content, capacity, size, style, utility, brand, origin, ... meet the requirements for classification and determination of affected factors, relating to the determination of the taxable value of goods.

Example: Motorcycles, automobiles need to have information on their brands, manufacturers, countries of manufacture, design, cylinder, model, other semaphore,...

a.2) Unit: Must be clearly quantified upon units of measurement (such as meters, kilograms,...), in case of not clearly quantified (such as barrels, boxes ...) they must  be made the conversion into similar units (such as the number of boxes in a barrel, the number of kilograms, packs, pieces in a box)...).

a.3) For the cases that goods’ names, units were not declared specifically, clearly and were not quantifiable as specified above, it’s necessary to request the customs declarants to clarify more information on the goods. Where the customs declarants do not declare more information as required by the customs agencies or declare additional information but incomplete, the provisions in section a, point 1.3.2.2 of this clause shall be applied for handling.

b) Inspection of the declared price rates: Customs agencies compare, cross-check the declared prices with the price database at the time of value inspection.

The price database used for inspection of declared value is the price data to be collected, updated, used according to provisions in the Regulation of making, managing, using the price database.

1.3.1.2) Handling of Inspection result:

a) To accept the declared price rates of the customs declarants if the inspection results are not subject to the cases mentioned in section b of this point.

Where there is no doubtful question on the price rates but doubtful on procedures and records as prescribed in section  a.4, a.5, a.6 point 1.3.2.2 of this clause, however, there is not sufficient grounds to make a conclusion, the customs agencies still accept the declared price rates, at the same time, transfer the doubtful questions on customs procedures to the post-clearance inspection force.

b) To move the inspection of taxable value to the inspection level on the basis of the printed E-customs declarations, printed E-value declarations and documents attached to the declarations under form of paper, if belonging to one of the following cases:

b.1) Goods’ name, units are not declared specifically, clearly as provided in section a.1, a.2 point 1.3.1.1 of this clause;

b.2) To detect the conflicts on procedures, dossiers as provided in section a.4, a.5, a.6 point 1.3.2.2 of this clause;

b.3) Having doubtful question on price rates.

1.3.2) To inspect the declared value on the basis of the printed E-customs declarations, printed E-value declarations and documents attached to the declarations under form of paper:

1.3.2.1) Contents of inspection:

a) To inspect declared contents: to inspect all of the criteria stated in the printed E-customs declarations, printed E-value declarations declared by the importers as prescribed in section a point 1.3.1.1 of this clause.

b) To inspect the accuracy of the records (such as arithmetic,...); faithfulness, consistence on the contents among documents in the customs dossiers (such as comparison, cross-check between the Articles of contracts,...); to compare, cross-check the contents of commercial invoices with the goods purchase and sale contracts; to compare, cross-check the declared contents in the printed E-value declarations with the corresponding documents involved in customs dossiers.

c) To inspect the legality of the documents relating to the determination of taxable value.

d) To inspect the compliance of principles and methods of determining the taxable value as guided in this Circular, the conditions of application, order and the methods used to determine the declared value.

Example: The customs declarants apply incorrect procedures on the methods of determining taxable value as guided in Item II Chapter II of this Circular.

e) Inspection of declared price rates: To make the inspection of declared price rates as provided in section b point 1.3.1.1 clause 1 of this Article.

1.3.2.2) Handling of inspection results:

a) To reject the declared value and determine the taxable value as prescribed in this Circular and, depending on the nature and seriousness of the violations to handle according to law regulations, if after the inspection, the customs agencies detect one of the contradictions on procedures, records; on principles and order to apply the methods of determining the taxable value (hereinafter referred to as contradictions on procedures, records). The contradictions on procedures, records include:

a.1) Customs declarants are required to supply more information on goods’ names, units but the customs declarants do not declare or declare insufficiently;

a.2) Having the contradictions on contents between vouchers, documents in the customs dossiers submitted or presented to the customs agencies by the customs declarants and the bases to determine that the customs declarants declare untruthfully the contents relating to the value determination;

For example: there are differences on the description of goods between commercial invoice and the purchase and sale contracts.

a.3) Customs dossiers and the relevant documents are not lawful;

a.4) Failing to declare or declare incompletely and inaccurately the factors of transactions affecting value (eg failing to declare the adjustments, special relationships; royalties, license fees,...);

a.5) Applying incorrect order for the methods, contents of the methods of determining taxable value under the provisions of this Circular;

a.6) Failing to satisfy one of the conditions when applying the methods of determining taxable value as provided in this Circular;

Example: The customs declarants does not satisfy the conditions on the right to dispose or use of goods after the import when applying the method of transaction value; failing to satisfy the conditions on the time when selecting similar, identical goods for the case of applying the method of transaction value of identical imported goods, the method of transaction value of similar imported goods,...

b) Handling the cases of doubtful question:

b.1) Where there is no doubtful question on the price rates but doubtful on procedures and records, the customs agencies accept the declared price rates, at the same time, transfer the doubtful questions to the post-clearance inspection force.

b.2) Where there is doubtful question on the price rates except for the one reffered in section b.4.7 of this point and whether or not the doubtful question on procedures and records, it is handled as follows:

b.2.1) For goods which are subject to the risk List of imported goods of General Department level, the risk List of imported goods of Department level: the customs agencies notify to the customs declarants the bases, grounds of the doubtful question for the declared price rates, method, the price rates shall be defined by the customs agencies under the form No.1 issued together with this Circular.

b.2.1.1) Where customs declarants agree with the price rates and the method defined by the customs agencies under the form No.1, the customs agencies issue notification to determine the value under the form No.4 issued together with this Circular, to implement tax imposition at the price defined and state clearly in the customs declarations.

b.2.1.2) Where customs declarants disagree with the price rates and the method defined by the customs agencies under the form No.1, the customs declarants are allowed to implement the right of advisory according to the provisions in Article 25 of this Circular, if the customs declarants wish for clearance of goods for the cases goods which are subject to tax payment before being received.

Customs agencies notify to the customs declarants to implement the assurance under the form No.2 attached herewith. The price rate to determine the assurance is the price rate determined by the customs agencies under the form No.1.

b.2.2) For goods which are out of the risk List of imported goods of General Department level, the risk List of imported goods of Department level, the customs agencies accept the declared price rates, at the same time, transfer the doubtful questions to the post-clearance inspection force.

b.3) Where there is doubtful question on the price rates in section b.4.7 and whether or not the doubtful question on procedures and records, the customs agencies accept the declared price rates, at the same time, transfer the doubtful questions to the post-clearance inspection force.

b.4) The cases of doubtful question on the price rates: the imported goods are considered to be a doubt on price rates if belonging to one of the following cases:

b.4.1) The imported goods with the declared price rates lower than the lowest taxable price rates of similar, identical goods determined by the customs agencies; or lower than the lowest declared price rates of similar, identical goods (not compared with the goods lots being in the doubtful case), have been approved under the declared price by the customs agencies.

Identical, similar goods used to compare are those which are exported to Vietnam on the same day or within a period of 60 days before or after the date of export of the goods being inspected its value. In cases unable to find the identical, similar goods within the period mentioned above, a period of time shall be extended but not exceeding 90 days before or after the date of export of the goods being inspected its value.

b.4.2) The imported goods have the declared price rate lower than or equal to the declared price rate of the synchronous components of the imported same type of goods, or less than or equal to the declared price rate of key raw materials constituting an imported complete product.

The period to select data is implemented according to provisions in section b.4.1 of this point.

b.4.3) The imported goods with the declared price rate lower than the inspected price rate of the identical, similar goods having the risk List of imported goods of General Department level, the risk List of imported goods of Department level.

b.4.4) The imported goods with the declared price rate lower than the price rate collected by the customs agencies from other sources of information after being converted into the same condition with the goods lot being inspected its value.

b.4.5) Imported goods with the discount factors in which after subtracting the deducted amounts the declared price rate are less than the price rate of similar, identical goods as provided in the price database.

b.4.6) In case of unable to find the identical goods, similar goods in accordance with provisions in this Circular to compare and examine the declared price rates, the application of flexibility, expansion of the concept of identical goods, similar will be made, specifically:

b.4.6.1) Imported goods with many features and utilities associated with are comparable to the items of the same type with a basic features already put in the price database.

b.4.6.2) The imported goods with higher quality level are comparable to the items of the same type with lower quality level already put in the prices database.

b.4.6.3) The imported goods originating from developed countries, countries block are comparable to the items of the same type from the not-yet developed, developing countries, countries block already put in the prices database (eg imported Goods being needed to inspect value originating from Japan are comparable to goods of the same type originating from South Korea already put in the prices database).

The period of time to select data is implemented according to the provisions in section b.4.1 of this point.

b.4.7) Imported goods with declared pricer rate higher than 15% compared to the price rates in the price database.

The period of time to select data is implemented according to the provisions in section b.4.1 of this point.

c) To accept the declared price rates for the cases not belonging to section a, section b of this point.

2) For the case of failing to conduct E-customs procedures:

2.1) Contents of inspection: the inspection of the contents of the declaration, the declared price rates, the accuracy of records, the legality of the relevant documents, the compliance with principles and methods of determining the taxable value is implemented in accordance with provisions in point 1.3.2.1 clause 1 of this Article, but replacing the printed E-customs declaration, the printed E-value declaration by customs declaration, value declaration available in the customs dossiers according to regulations.

2.2) Handling of inspection results: to conduct as provided in point 1.3.2.2 clause 1 of this Article.

Article 25. Delay of determining taxable value

1) The cases of delay of determining taxable value:

1.1) Customs declarants delay the determination of taxable value: applying to the cases the customs declarants who have not got enough necessary information to determine taxable value at the time of registering customs declaration.

1.2) Customs agencies delay the determination of taxable value: applying to the cases required to conduct the consultantcy as prescribed in Article 26 of this Circular.

2) Time of delay: within 30 days since the date of registering customs declaration.

3) Procedures to delay the determination of taxable value:

3.1) For the cases that customs declarants delay the determination of taxable value:

3.1.1) For customs declarants:

3.1.1.1) Applying written request to the customs agencie for delaying the determination of taxable value with the reason that they have not got enough necessary information for determination of taxable value at the time of registering customs declaration;

3.1.1.2) Where goods which are subject to tax payment before being received, the assurance for  entire taxation of imported goods lot determined by customs agencies shall be made, if customs declarants wish to be conducted customs clearance;

3.1.1.3) Within 30 days since the date of registering customs declaration, the customs declarants must declare the necessary information to determine the taxable value for the imported goods lot, self-re-calculate the payable tax and pay enough tax in accordance with regulations

3.1.2) For customs agencies:

3.1.2.1) The heads of Branches of Customs base on price database and the principles, methods of determining the taxable value provided in this Circular to determine the taxable value and calculate the must-be-paid assurance level. The assurance level must be sufficient to ensure for all must-be-paid tax obligations.

3.1.2.2) To notify the assurance level to the customs declarants under the form No. 2.

3.1.2.3) To clear goods when the customs declarants implement the assurance as prescribed in this Circular.

3.1.2.4) Over 30 days since the date of registering customs declaration but the customs declarants fail to declare information to determine the taxable value, the customs agencies determine taxable value according to the form No.4 of this Circular, assess tax and notify to the customs declarants for making full payment in accordance with regulations.

3.2) For the cases that customs agencies delay the determination of taxable value:

3.2.1. For customs agencies:

3.2.1.1) The heads of Branches of Customs calculate the must-be-paid assurance level for the cases goods are subject to tax payment before being received and notify to the customs declarants according to the form No.2. The price rate to calculate the assurance level is the one notified under the form No.1.

Where the customs declarants has paid taxation according to declaration, the assurance level shall equal to the difference between the tax amount calculated at price rate determined by the customs agency and the tax amount calculated at the price rate declared by the customs declarants.

3.2.1.2) To clear goods when the customs declarants implemented the ensurrrance for entire the must-be-paid tax amount as prescribed in this Circular.

3.2.1.3) Within 30 days since the date of registering customs declaration, the customs agencies must hold the consultations to clarify doubts on the declared price rates as prescribed on consultation in Article 26 of this Circular.

3.2.2) For customs declarants:

3.2.2.1) To implement the assurance to all taxations of the imported goods lot at the assurance level determined by the customs agencies if they wish for customs clearance;

3.2.2.2) To implement the consultations as prescribed in Article 26 of this Circular.

4) Forms of assurance, time for assurance:

4.1) Forms of assurance: Contents and forms of assurance performed under the law on tax administration that provides the guarantee for the amount of payable tax.

4.2) Form of deposit:

4.2.1) For customs declarants: to remit the deposit in the deposit account of the customs agencies at the State Treasury; the deposit which is payable at the assurance level in the notice of the customs agencies according to the form No.2 of this Circular.

4.2.2) For the customs agencies:

4.2.2.1) To guide the customs declarants to remit deposits into the deposit account of the customs agencies at the State Treasury;

4.2.2.2) During a maximum period of 05 days since the date of the notice of taxable value, the Branches of Customs must implement:

a) To make procedures for transfer of the deposit equivalent to the payable tax (if any) from the deposit account of the customs agencies to the collection account of the state budget under current regulations;

b) To make procedures for returning the overpaid deposit to the customs declarants.

4.3) Time for assurance: within 30 days since the date of registering customs declaration.

Article 26. Consultations

1) Competence of consultations:

1.1) Directors of Customs Department of provinces and cities hold to implement the consultation and take responsibility for the effectiveness of the consultation at the units.

1.2) Based on the actual situation, management capabilities, the distances between the Departments and Branches, the Directors of Customs Department of provinces and cities may decentralize to Heads of the Branches to carry out the consultation for the items to be of the risk List of imported goods of Department-level but not exceeding 10% of number of goods to be of the risk List of imported goods of Department-level that must consult.

1.3) In case many imported goods are declared in a declaration must be consulted including goods to be of the risk List of imported goods of General Department-level and the risk List of imported goods of Department-level, Directors of the Department of Customs of provinces, cities hold to implement the consultation.

2) Form of consultation:

2.1) Direct consultation.

2.2) Consultation by e-mail: to guide specifically when having enough conditions to implement.

3) The cases must be consulted:

3.1) Customs agencies have doubtful on the price rates for items to be of the risk List of imported goods of General Department-level or the items to be of the risk List of imported goods of Department-level, but the customs declarants disagree with the price rate and the method determined by the customs agencies under the form No.1 attached herewith;

3.2) The customs agencies have grounds for doubts on the special relationship affecting transaction value.

3.3) Directors of the Customs Departments of provinces and cities decide on the consultation for goods to be of the risk List of imported goods of General Department-level or the risk List of imported goods of Department-level with doubt on price rates, However the declared price rates are lower but not exceeding 5% compared with the price rates in the price database at the time of inspection.

3.4) For the same item, the import procedures made by the same enterprice at the same customs unit, under the same contract or the many different contracts, only to hold for the first imported goods lot, if it meets fully the following conditions:

3.4.1) Information relating to the inspection and determination of taxable value which the customs agencies obtained from the price databases and information collected by other professional measures, to the time of inspection, determination of taxable value for imported goods lot being determined value, unchanged compared to the information used to hold the consultation for the first imported goods lot.

3.4.2) The customs declarants accept to use the first consultation result for the following import times.

4) Consultation and handling of consultation result:

4.1) Consultation preparation:

4.1.1) Customs agencies:

4.1.1.1) To notify under the form No.3 issued together with this Circular to the customs declarants the time and location to execute the consultation; relative records and documents for the consultation;

4.1.1.2) Preparation of consultation contents.

4.1.2) Customs declarants:

4.1.2.1) To supply the information, documents, vouchers upon the contents notified from the customs agencies.

4.1.2.2) To assign the competent representatives to decide the contents relating to the determination of taxable value or persons who are authorized wholly for joining the consultation.

4.1.2.3) To answer the questions during the course of consultation relating to the import transaction at the request of the customs agencies.

4.2) Contents of consultation:

Pursuant to records, documents and information, data prepared in advance, the customs agencies require the enterprises to answer the questions relating to the declaration of the import transaction elements; declared price rates; method of determining the taxable value of use enterprises.

Customs agencies pay attention to focus on clarifying the doubtful questions on the records, the declared price rates. The inquiry in the consultation process must be recorded fully and truthfully in the consultation minutes. At the end of the consultation minutes, based on the contents of the enterprises’ reply, the information on price data, the customs agencies clearly state "accept " or "reject" the declared price rates, expected tax rates. The parties in the consultation must together sign in the minutes of consultation.

4.3) Time to consult and determine the taxable value: a maximum period of 30 days since the date of registering the declarations.

4.4) Handling of consultation result:

4.4.1) The Customs agencies reject the declared price rates and determination of taxable value in the following cases:

4.4.1.1) During the consultation process, the customs agencies detect contradictions on procedures and records as prescribed in point 1.3.2.2 clause 1 Article 24 of this Circular.

4.4.1.2) The customs declarants declare untruthfully the contents relating to the determination of taxable value:

a) The customs declarants fail to declare or declare wrongly the payable or paid actual value; the factors involved in determining the taxable value (as adjustment  amounts, special relationship, the conditions to apply the methods of determining the value...)

b) The exporters or the exporters' representatives have the information to confirm the declared price rate incorrectly to the actual purchase and sale.

c) The information obtained from the customs agencies by the other professional measures to assert the untruthful transaction value.

d) Information provided by the customs declarants after being detected that it is inaccurate; fake documents; vouchers or illegal documents.

4.4.1.3) Customs declarants fail to explain or unable to explain on the truthfulness and accuracy of content relating to the determination of taxable value:

a) Over the time for consultation requirement but the customs declarants fail to joint in the consultation.

b) Over the time limit of requirement but the customs declarants fail to supply the information, documents, vouchers upon the notification’s contents of the customs agencies.

c) Customs declarants fail to explain, fail to prove the explanation, prove  inconvincibly, unfounded for the doubful questions of the customs agencies (as on record rationality; declared price rates or special relationship that affects the transaction value, the contents of the reply of the customs declarants conflict with the customs dossiers, records, documents and materials declared or presented by enterprises having conflict; the reasonableness of the declared price rates and the price of similar, identical goods having in the price database...).

4.4.1.4) For the case the declared value is rejected, within a maximum 05 day period since the date of ending the consultation but not exceeding 30 days since the date of registering the customs declarations, the customs agencies determine the taxable value and issue notice of taxable value under the form No.4 attached herewith.

4.4.2) Acceptance of the declared price rates: Apart from the case the declared price rate is rejected as mentioned in point 4.4.1 of this clause, the customs agencies accept the declared price rate and and issue notice of taxable value under the form No.4 attached herewith.

5) Entire documents, records relating to the consultation must be stored with the customs dossier.

6) Apart from consultation, to ensure the truthfulness and objectivity of the inspection process, determination of the taxable value, the customs agencies may conduct to collect advisory opinion of the relative  units and agencies.

7) Customs declarants are entitled to complain for the results of determining the taxable value of the customs agencies after consulting as guided in Article 29 of this Circular.

Section III. INSPECTION OF TAXABLE VALUE AFTER GOODS CLEARANCE

Article 27. Inspection of the taxable value after the goods have been cleared:

1) For re-inspection force at the Branches of customs:

1.1) Subject of inspection: Inspection of customs dossiers, the declared prices and other materials relevant to the determination of the taxable value of exports and imports.

1.2) Contents of inspection:

1.2.1) For exported goods: examining on the contents stipulated in Article 22 of this Circular.

1.2.2) For imported goods: examining on the contents stipulated in Article 24 of this Circular.

1.3) Handling of inspection results:

1.3.1) If any conflict of procedures or documents being detected, the declared price shall be rejected, the taxable value is determined under the provisions of this Circular;

1.3.2) If any suspicious records, documents or declared price rates is detected, but not sufficient grounds to conclude the fraud, the suspected case shall be transferred to the post-clearance inspection force for verifying and clarifying.

2) For the post-clearance inspection force:

2.1) Subjects of inspection: The cases of doubt about the records, documents or declared price transferred by reinspection force; transferred by customs clearance inspection force; transferred by post-clearance inspection force or by assessing risk level in goods, commodity, exporters, importers shall be post-clearance inspected at the customs agencies or at the warehouse of enterprise.

2.2) Content of inspection, inspection procedures, handling the inspection results: shall be complied with the regulations on customs clearance and inspection regulations for determining taxable value.

3) For the anti-smuggling investigation force:

Organizing the inspection and verification of cases with signs of major fraud in value as: Falsified records and documents; connived to lower or create false value transfered from post-clearance inspection force or the outstanding cases of fraud, be systematic, large scale detected by anti-smuggling force.

4) For the inspected goods lot in the process of customs procedures, including the cases being rejected the declared value or the cases being accepted the declared value but violations detected by reinspection force, post-clearance inspection force, anti-smuggling force, violations is still handled in accordance with law, make tax imposition and clarify responsibilities inspection in the process of customs procedures, violations are disciplined according to branch regulations and laws.

Article 28. The professional coordination relationship between value inspection force in the process of customs procedures and the post-clearance inspection force.

1). For the value inspection force in the process of customs procedures:

1.1) Periodically collecting, reviewing the suspected issues about the prices, the procedures; evaluating, analyzing the suspicious signs and transmit to post-clearance inspection force for inspection according to regulations.

1.2) Receiving the inspection results and recommendations of the inspection force after the goods have been cleared for synthesizing, analyzing, evaluating to identify solutions for value inspection in the process of customs procedures to prevent on time value fraud and improve the efficiency of the management of taxable value of goods export and import.

2) For inspection force after the goods have been cleared:

2.1) Reporting inspection results, handling the value after the goods have been cleared to the inspection force in the process of customs procedures within 05 days since the date of issued inspection results;

2.2) Based on actual inspection results, recommending the inspection solutions to the value inspection forces during customs procedures, to prevent value fraud, and proposing amendments of price control policies in line with the actual situation.

Chapter IV

COMPLAINTS AND HANDLING OF VIOLATIONS

Article 29. Complaints and complaints settlement

1) The customs declarant who does not agree with the results of determining the taxable value of the customs agencies shall have the right to appeal under the provisions of law on complaints and denunciations, or may initiate an administrative case in court under the provisions of law on procedures for settlement of administrative cases;

2) The time limit for complaints is made under the provisions of law on complaints and denunciations;

3) The order of handling complaints and denunciations is made under the provisions of law on complaints and denunciations and the provisions of relevant laws;

4) During the settlement of complaints, the customs declarants, the taxpayers must pay enough tax upon the price rates determined by the customs agencies for exports and imports;

5) General Director of Customs General Department, Heads of Customs Departments of provinces and cities establish price advisory councils for the second time complaints on the price rates determined by the customs agencies which its tendency is complex and prolonged.

Article 30. Handling of violations

1) The Customs agencies, customs cadres and officers lack sense of responsibility, violate the provisions of the Decree No.40/2007/ND-CP dated 16/3/2007 and the guidance in this Circular, causing damages to tax payers, the loss of tax money shall pay compensation for damages as stipulated in the Law No.35/2009/QH12 June 18, 2009 on liability to pay compensation of the State, at the same time:

1.1) For customs cadres and officers: Depending on the nature and seriousness of their violations, shall be disciplined or examined for penal liability according to law.

1.2) For the heads of units: To conduct regime of responsibility for the heads of units as prescribed by law.

2) Taxpayers, customs declarants violate the provisions in the Decree No.40/2007/ND-CP dated March 16, 2007 of the Government and the guidance in this Circular shall, depending on the nature and seriousness of violations shall have to pay tax according to decisions of tax imposition of customs agencies and shall be administratively sanctioned or examined for penal liability according to law regulations.

Chapter V

IMPLEMENTATION ORGANIZATION

Article 31. Responsibility for implementation

1) The Ministry of Finance coordinates with the ministries and business lines associations to collect and exchange price information for inspecting, determining value; the General Department of Customs organize price database system for inspection and determination of taxable value in the customs field; the Customs Department of provinces, cities, inter-provinces take responsibility to collect, process, report and use price information in accordance with provisions of the General Department of Customs.

2) The General Department of Customs stipulates specifically the process of inspection, consultant, determination of taxable value; guides, conducts, organizes the specific implementation of this Circular.

3) Customs agencies, the customs declarants, taxpayers and the relative organizations and individuals, event for the case of implementation of e-customs procedures are responsible for implementing the determination of taxable value according to the instructions in this Circular; in case of arising any problems, people need to reflect to the Ministry of Finance, General Department of Customs for consideration and settlement instructions.

Article 32. Effect.

1) This Circular takes effect after 45 days since the signing date, replaces the Circular No.40/2008/TT-BTC dated May 21, 2008 of the Ministry of Finance, Article 21 of Circular No.222/2009/TT-BTC dated November 25, 2009 and the previous guidance of the Ministry of Finance which are contrary to this Circular.

2) During the implementation process, if the relevant documents mentioned in this Circular and the Appendix attached to this Circular which are amended, supplemented or replaced, the amended, supplemented or replaced one shall be applied./.

 

 

 

FOR MINISTER
DEPUTY MINISTER




Do Hoang Anh Tuan

 

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Số hiệu205/2010/TT-BTC
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Lược đồ Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16


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Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16
Loại văn bảnThông tư
Số hiệu205/2010/TT-BTC
Cơ quan ban hànhBộ Tài chính
Người kýĐỗ Hoàng Anh Tuấn
Ngày ban hành15/12/2010
Ngày hiệu lực29/01/2011
Ngày công báo...
Số công báo
Lĩnh vựcThuế - Phí - Lệ Phí, Xuất nhập khẩu
Tình trạng hiệu lựcHết hiệu lực 01/04/2015
Cập nhật4 năm trước

Văn bản gốc Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16

Lịch sử hiệu lực Circular No. 205/2010/TT-BTC guiding the Decree no.40/2007/ND-CP dated March 16