Công văn 12166/BTC-TCHQ

To Customs Departments of cities and provinces

In an effort to ensure consistent implementation of new and critical provisions of the Law on Export and Import Duty No.107/2016/QH13 passed in the 10^th Plenum of 13^th National Assembly from September 1, 2016 on which it is enacted, the Ministry of Finance hereby would like to request the Directors of Customs Department of centrally-governed cities and/or provinces to pay attention to directing implementation of certain contents specified hereunder:

I. Tax exemption for goods exported for processing

Goods exported for processing, including natural resources, minerals and products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for at least 51% of the product cost, shall not be exempt from the export duty.

Taxpayers must, on their own, identify and declare products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for less than 51% of the product cost prior to proceeding to handle customs clearance procedures, as the basis for determination of goods exempted from customs duty in accordance with laws and regulations.

Identifying products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for less than 51% of the product cost shall be subject to the provisions on identification of products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for at least 51% of the product cost as set forth in the Government’s Decree No. 100/2016/ND-CP dated July 1, 2016 specifying and providing guidance on implementation of certain Articles of the Law on Value-added Tax, the Law on Special Excise Duty, the Law on Tax Administration and other instruments providing instructions for implementation thereof.

II. Tax exemption for goods imported for manufacturing of exported goods

1. Raw materials, supplies, other inputs, components, semi-finished products and finished products imported for manufacturing of exported goods, all of which are exempted from the import duty, include:

a) Raw materials, supplies or other inputs (including packing materials or packaging used for exported products), components, semi-finished products, all of which are directly imported as constituents of exported products or directly participate in the process for manufacturing exported products, but are not directly converted into finished products;

b) Finished products imported for the purpose of attaching or wrapping exported assembly items for other exported products, or for the purpose of being handled as products synchronous with other exported products;

c) Components or spare parts imported for the purpose of servicing exported products;

d) Imported items which are not used for purchase, sale, bartering or consumption purposes, but are only used as sample products.

2. Document requirements and procedures for tax exemption for goods imported for processing shall be subject to provisions set forth in the Government’s Decree No. 08/2015/ND-CP dated January 21, 2015 and the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

III. Tax exemption for goods that are temporarily imported, exported, re-imported or re-exported within a specified period of time

1. Goods that are temporarily imported, exported, re-imported or re-exported within a specified period of time shall be eligible for tax exemption under the provisions of Clause 9 Article 16 of the Law on Export and Import Duty.

2. Goods that are temporarily imported, exported, re-imported or re-exported for the purpose of rendering warranty, repair or replacement services referred to in Point c Clause 9 Article 16 of the Law on Export and Import Duty are required to neither make any change to physical appearances, fundamental functions and properties of temporary imports or exports nor create any other products.

Where replacement for a product is required under warranty terms and conditions of a sale and purchase agreement, a replacement product must be identical in terms of its physical appearance, basic functions and properties to a replaced one.

3. Document requirements and procedures for tax exemption for goods that are temporarily imported, exported, re-exported or re-imported for the purpose of rendering other business services within a specified time period shall be subject to applicable regulations.

When trading commercial goods that are temporarily imported for re-export, taxpayers are obliged to submit the letter of guarantee issued by a credit institution or the certificate of payment into the deposit account of a customs authority made at the State Treasury, including 01 duplicate copy thereof submitted together with the original copy thereof presented for comparison purpose in case the letter of guarantee has not been updated on the electronic customs data processing system.

Provision of guarantee or payment of import duty deposit for commercial goods that are temporarily imported or re-exported shall be subject to the instructions given in the Section XI hereof.

IV. Identification of projects for manufacturing of products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for less than 51% of the product cost

Identifying products of which total value of natural resources and minerals used, plus costs of energy consumed, for manufacture, accounts for less than 51% of the product cost as the basis for tax exemption as prescribed by Clause 13 Article 16 of the Law on Export and Import Duty shall be subject to the instructions given in the Section I hereof.

V. Tax exemption for imported raw materials, supplies or other inputs or components directly used for manufacturing of information technology, digital content or software products; dedicated imports directly used in the education sector; dedicated imports directly used for scientific research and technology development purposes, subject to the provisions laid down in Clause 18, 20 and 21 Article 16 of the Law on Export and Import Duty.

1. Bases for identification of goods that have not yet been domestically manufactured yet shall be subject to the regulations set out by the Ministry of Planning and Investment in its Circular No. 14/2015/TT-BKHDT dated November 17, 2015 introducing the Schedule of machinery, replacement parts and dedicated transport equipment, raw materials, supplies, inputs, components and semi-finished products which have already been domestically manufactured (hereinafter referred to as Circular No. 14/2015/TT-BKHDT)

2. The Scheduling or criteria for identification of dedicated materials, science books, journals, newspapers or magazines directly used for the purpose of scientific research, technology development, development of technology or science-technology business incubation activities and technological innovation shall be subject to regulations enforced by the Ministry of Science and Technology.

3. Bases for identification of imported raw materials, supplies, inputs or components directly used for manufacturing of information technology, digital content and software products shall be subject to the regulations enforced by the Ministry of Information and Communications.

4. Bases for identification of dedicated imports, including books, newspapers, magazines, materials, teaching and research equipment used in schools or other educational establishments, which are directly used in the education sector, shall be subject to the regulations enforced by the Ministry of Education and Training.

5. Document requirements for tax exemption:

Documents submitted to apply for tax exemption are customs dossiers as prescribed by customs legislation.

With respect to dedicated imports directly used for scientific research or technology development purposes, taxpayers are bound to additionally submit one of the following documents, as the case may be:

a) Decision concerning execution of scientific research and technology development projects, programs or tasks and the Schedule of goods that taxpayers want to import for execution thereof by a state regulatory authority, prescribed by the Law on Science and Technology, including 01 duplicate copy thereof which is certified as a true copy of the original of that decision made by such authority;

b) Written confirmation of the Schedule of goods used for development of technology or science-technology business incubation activities by the People’s Committee of a city, province or the host Ministry where a technology or science-technology business incubation project or facility is located, including 01 duplicate copy thereof which is certified as a true copy of the original of that written confirmation made by such authority;

c) Written confirmation of the Schedule of goods used for technological innovation made by the Ministry of Science and Technology or an authority empowered by the Ministry of Science and Technology, including 01 duplicate copy thereof which is certified as a true copy of that written confirmation made by such authority.

6. Procedures for tax exemption shall be subject to applicable regulations on duty-exempt goods referred to in the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

VI. Tax exemption for fertilizers and pesticides

1. Fertilizers and pesticides that have not yet been locally produced and need to be imported for direct use in the agricultural, forestry and fishery sector shall be exempted from import duty in accordance with Clause 12 Article 16 of the Law on Import and Export Duty.

2. Bases for identification of goods that have not yet been locally produced shall be subject to the regulations enforced by the Ministry of Planning and Investment in the Circular No. 14/2015/TT-BKHDT

3. Document requirements and procedures for tax exemption shall be subject to applicable regulations on tax exemptions for goods that must appear on the Schedule of duty-exempt goods as prescribed by the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

VII. Tax exemption for goods used for banknote printing and minting activities

1. In order to be exempted from import duty in accordance with provisions laid down in Clause 17 Article 16 of the Law on Export and Import Duty, it is required that imported machinery, equipment items, raw materials, supplies, inputs, parts or components for paper money and coin printing and minting activities appear on the Schedule released by the State Bank’s Governor.

Goods eligible for import duty exemption as prescribed by this Section must be imported by organizations appointed by the State Bank.

2. Bases for machinery, equipment items, raw materials, supplies, inputs, parts or components imported for paper money and coin printing and minting activities shall be subject to the regulations imposed by the State Bank of Vietnam.

3. Document requirements and procedures for tax exemption shall be subject to applicable regulations on tax exemptions for goods that must appear on the Schedule of duty-exempt goods as prescribed by the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

In addition to the aforesaid, documents submitted to apply for tax exemption must include the written permission granted by the State Bank to import machinery, equipment, raw materials, supplies, inputs, components or parts for paper money and coin printing and minting activities, including 01 duplicate copy which is certified as a true copy of that written permission.

VIII. Tax exemption for non-commercial goods

1. A non-commercial good is exempted from import duty if:

a) it is a sample product of which customs value does not exceed VND 50,000 (fifty thousand dong) or a product used as a sample product which is not traded, exchanged or consumed;

b) it is a photo of a sample product, a video of a sample product or a mockup used as replacement for a sample product;

c) it is a print advertisement referred to in Chapter 49 of the Schedule of imports and exports of Vietnam, including: flyers, trade catalogues, yearbooks, advertising materials or tourism posters used for the purpose of advertising, launching or advertising a product or service and provided free of charge. It is exempted from import duty in accordance with Clause 10 Article 16 of the Law on Export and Import Duty provided each shipment is composed of 01 type of print advertisement and the gross weight of that shipment is less than 1 kg. Where each shipment contains various print advertisements, each print advertisement has only one copy or the maximum gross weight of 01 kg.

2. Document requirements and procedures for tax exemption shall be subject to applicable regulations on tax exemptions for goods that must be registered in the Schedule of duty-exempt goods as prescribed by the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

IX. Tax exemption for exported or imported goods used for social security, mitigation of the impacts of natural disasters, calamities, epidemics and in other special cases

1. Exported or imported goods used for social security, mitigation of the impacts of natural disasters, calamities, epidemics and in other special cases shall be exempted from customs duty in accordance with Clause 23 Article 16 of the Law on Export and Import Duty, comprising:

a) Goods which have not yet been locally produced and need to be imported for direct uses in projects as part of the Government’s social security program will be exempted from import duty.

b) Goods which have not yet been locally produced and need to be imported for mitigation of the impacts of natural disasters, calamities or epidemics will be exempted from import duty.

c) Exported or imported goods used in other special cases shall be subject to the Prime Minister’s decision on whether they are exempted from import or export duty, as the case may be.

2. Application for tax exemption for goods imported for mitigation of the impacts of natural disasters, calamities or epidemics which is submitted prior to procedures for customs clearance thereof shall include:

a) A written request for tax exemption made by the People's Committee of a city or province, Ministry or other authority at the similar level, which clearly states assessment of the likely impacts of natural disasters, calamities or epidemics within their jurisdiction, including 01 original copy required;

b) The Schedule of imported goods directly used for mitigation of the impacts of natural disasters, calamities or epidemics, including 01 original copy required;

c) The decision to announce an epidemic issued by a regulatory authority in accordance with provisions laid down in the Law on Prevention and Treatment of Infectious Diseases, in the event that goods are imported for mitigation of the impacts of such epidemic, including 01 duplicate copy which is certified as a true copy of that decision.

3. Application for tax exemption for imported goods directly used for social security purpose which is submitted prior to procedures for customs clearance thereof shall be composed of:

a) The written request for tax exemption made by the People’s Committee of a city, province or Ministry or a regulatory authority at the similar level, including 01 original copy required;

b) The Schedule of imported goods directly used for social security purpose, including 01 original copy required;

4. Application for tax exemption for imported goods directly used for meeting the need for emergency aids in case of natural disasters, calamities or epidemics which is submitted prior to procedures for customs clearance thereof shall include:

a) A written request for tax exemption made by the People's Committee of a city or province, Ministry or other authority at the similar level for importation of goods used as emergency aids, which clearly states assessment of the likely impacts of natural disasters, calamities or epidemics within their jurisdiction, including 01 original copy required;

b) The Schedule of imported goods directly used as emergency aids, including 01 original copy required;

c) The decision to announce an epidemic issued by a regulatory authority in accordance with provisions laid down in the Law on Prevention and Treatment of Infectious Diseases, in the event that goods are imported for mitigation of the impacts of such epidemic, including 01 duplicate copy which is certified as a true copy of that decision.

5. Procedures for tax exemption:

a) After considering the written request for tax exemption made by the People’s Committee of a city, province, Ministry or an authority at the similar level, within the permitted duration of 15 days, the Ministry of Finance shall assess documents submitted to apply for tax exemption and send an assessment report enclosing the Schedule of goods for which tax exemption is requested to the Prime Minister to seek his decision.

b) After obtaining the Prime Minister’s decision, the Customs Subdepartment in charge of import or export clearance procedures shall grant import and export duty exemptions in accordance with laws and regulations.

X. Tax exemption for goods having a minimum customs value

1. Goods having total customs value of less than VND 500,000 (five hundred thousand dong) or total amount of import and export duty payable of less than VND 50,000 (fifty thousand dong) in each export or import affair shall be exempted from import and export duty.

This regulation shall not applied to goods which are gifts, donations or goods traded between border residents and goods delivered by express mail services.

2. Document requirements and procedures for tax exemption shall be subject to applicable regulations on tax exemptions for goods that must be registered in the Schedule of duty-exempt goods as prescribed by the Circular No. 38/2015/TT-BTC of the Ministry of Finance dated March 25, 2015.

XI. Tax payment deadline, provision of guarantee and payment of deposit for the tax amount payable

1. Tax payment deadline referred to in Article 9 of the Law on Export and Import Duty shall be imposed on exported and imported goods subject to taxes in accordance with legislative regulations.

2. Provision of guarantee for the amount of tax imposed on exported and imported goods shall be subject to applicable regulations (notwithstanding guarantee terms and conditions).

3. Where it is necessary to provide a deposit for the amount of import duty imposed on commercial goods temporarily imported and re-exported within a specified period (inclusive of the extended period of time), taxpayers must make a payment of an amount equal to the amount of import duty levied on temporary imports into a deposit account of a customs authority at the State Treasury.

Return of such deposit shall be subject to regulations on return of tax amounts, late payment fees or excess fines which are set out in legislation on tax administration.

If an enterprise has not yet re-exported its commercial goods which are temporarily imported and exported after the specified period of time during which temporary import and re-export are allowed out of Vietnam, the customs authority shall transfer the amount of deposit from a deposit account of that customs authority to the state budget in accordance with applicable laws and regulations.

XII. Goods imported for manufacturing of exported goods, commercial goods temporarily imported and exported, all of which are declared before September 1, 2016

If duty on raw materials, supplies, inputs or components imported for manufacturing of exported goods from which products created have not yet been exported (raw materials still in the inventory, having not yet been used in the production stage or else having been used in the production process, but from which products created have not yet been exported); commercial goods temporarily imported and re-exported which have not yet been re-exported as declared before September 1, 2016, have not yet been paid, these goods will be exempted from taxes as prescribed in Clause 7 and Point dd Clause 9 Article 16 of the Law on Import and Export Duty.

Taxpayers are required to submit a written request to a customs authority for its handling of procedures for tax exemption with respect to customs declarations submitted before September 1, 2016 in which clearly define the quantity of goods, tax amount payable or receivable after tax refund/tax non-collection procedures; the volume of goods and tax-exempt amounts under the provisions of the Law on Export and Import Duty.

The quantity of goods and tax amounts relative to the quantity of goods shall be exempted from being declared on new customs declaration as prescribed by applicable regulations on conversion of use of customs declarations (bases for tax assessment is dutiable value, tax rate and exchange rate available at the time of use of primary customs declarations). The deadline for customs declaration is on December 31, 2016.

Taxpayers are required to submit application for refund of tax/ non-collection of tax levied on goods from which products created have already been exported and already re-exported in accordance with applicable laws and regulations.

The Ministry of Finance hereby requests Customs Departments of cities or provinces to ensure sound and timely implementation of regulations enshrined in the Law on Export and Import Duty No. 107/2016/QH13 dated April 6, 2016 and significant requirements of this document. In the course of implementation, if there is any difficulty or issue that may arise, Directors of local Customs Departments must send a report to the Ministry of Finance or the General Department of Vietnam Customs to find timely solutions, and neither cause any inconvenience to enterprises nor let them directly contact the Ministry of Finance or the General Department of Vietnam Customs to petition in writing for possible solutions./.