Công văn 8356/BTC-TCHQ

Respectfully to: Customs Departments of provinces and cities

Pursuant to the Law on amending and supplementing a number of articles of the Law on Tax administration dated 20/11/2012, taking effect on 01/07/2013, while waiting promulgation of documents detailing the implementation of this Law, the Ministry of Finance guides Customs Departments of provinces and cities to implement some contents as follows:

I. Time limit for tax payment

1. Time limit for tax payment applicable to export and import goods shall comply with provision in clause 3 Article 42 of the Law on Tax administration amended and supplemented in clause 11 Article 1 of Law on amending and supplementing a number of articles of the Law on Tax administration, in which conditions for application of 275-day time limit for tax payment, from the  day of register of customs declaration for import goods being raw materials, supplies for production of export goods are specifies as follows:

a) Taxpayers must have facilities for production of export goods in Vietnam’s territory suitable with raw materials, supplies imported for production of export goods (on the basis of commitments of enterprises and taking responsibility before law on commitments); Customs offices must check in reality at enterprises with risk signs as guidance of the General Department of Customs;

b) Taxpayers already operated export and import for at least 02 consecutive years counted to dated of registering the customs declaration for the consignment of raw materials, supplies imported for production of export goods, and during 02 these years, taxpayers have been defined by customs offices as follows:

b.1) Not subject to handling on acts of smuggle, illegal transport of goods across the border;

b.2) Not subject to handling on acts of tax avoidance, tax fraud;

c) Taxpayers have no debts of overdue tax amounts, not delay for payment of fines involving export and import goods at time of registering declaration;

d) Taxpayers are not sanctioned by competent state management agencies for violations in accounting field for 02 consecutive years counted from the day of registering customs declaration and before that;

e) Payment of raw materials, supplies that are imported for export production must be performed through bank. Payment cases that are considered as payment via bank shall be handled in same manner as specified in clause 4 Annex I promulgated together with the Circular No. 194/2010/TT-BTC.

In case of indirect import, trustor must meet full conditions above and have contract of import entrustment; the person receiving import entrustment must meet conditions specified in points b, c, d, e mentioned above.

In case where mother company imports and provides for member companies or member companies import to provide for affiliated units of member companies or a member company imports to provide for other member company, affiliated units of mother company, affiliated units of member companies, and other member companies must meet full conditions above; the importing mother company or member company must meet conditions specified in points b, c, d, e mentioned above and provide list of member units, affiliated units, which have been registered to tax agencies, for the customs offices where doing procedures.

2. Goods for business of temporary import for re-export including case of send in bonded warehouses for temporary import for re-export must temporarily pay concerned tax kinds (as goods imported for business) into the deposit account of customs offices opening in treasuries; when re-exporting, these amounts shall be returned.

3. Time limit for tax payment applicable to some specific cases, excluding case of being permitted for cumulative payment of tax debts specified in clause 25 Article 1 of the Law amending and supplementing a number of articles of Law on tax administration:

a) For export or import goods that registered customs declaration once for export or import many times, the time limit for tax payment shall comply with regulation and apply to each actual time of export or import; 

b) For export or import goods that are in supervision of customs offices, but impounded for investigation, pending settlement by competent state agencies, the time limit for tax payment in each case shall comply with regulation but counted from the date the competent state agencies issue the written permission on clearance of impounded goods;

c) Goods being raw materials, supplies that have been imported prior to 01/07/2013 for production of export goods and goods of temporary import for re-export shift the domestic consumption shall implement tax declaration and payment before shifting the domestic consumption.

In case where raw materials, supplies that are imported after 01/07/2013 for production of export goods but re-exported shall be re-counted time limit for tax payment and fines due to late payment from the day of customs clearance, or clearance of goods.

In case where raw materials, supplies that are imported after 01/07/2013 for production of export goods but products are exported at time outside of time limit for tax payment; import under business form of temporary import for re-export and re-export is performed at time outside of time limit for tax payment, it is required to pay amount for late payment from the overdue date of tax payment to the actual day of  exporting products/re-exporting or to the actual day of tax payment (if the actual day of tax payment is sooner than the actual day of  exporting products/re-exporting).

d) For import goods serving directly for security and defense, having been granted customs clearance, after checking, if defining that these goods not belong to subjects to be considered for tax reduction, it is required to pay amount for late payment from the day of customs clearance, or clearance of goods to the actual day of  tax payment and be sanctioned violation in accordance with regulation (if any);

For import goods serving directly for science research, education and training that belong to subjects to be considered for tax reduction, during waiting for considering tax reduction, taxpayers must commit to implement the final decision of the General Director of the General Department of Customs about the payable tax amounts. If after checking, goods are defined to not belong to subjects to be considered for tax reduction, it is required to re-count time limit for tax payment and must pay amount for late payment from the day of customs clearance, or clearance of goods to the actual day of tax payment and be sanctioned violation in accordance with regulation (if any);

e) Where declare to pay additionally the lacked tax amounts, tax amounts fixed by customs offices, time limit for tax payment shall be counted from the day of customs clearance, or clearance of goods.

II. Predetermination of codes of export and import goods (hereinafter referred to as predetermination of codes)

1. The predetermination of commodity codes shall be performed to the export and import goods before doing customs procedures, at the request of organizations and individuals. 

2. Dossier of predetermination of codes:

a) Request for predetermination of codes (made according to the form No. 01/XDTMS/2013 promulgated together with this official dispatch):  01 original;

a) The purchase contract with foreign party of goods that are requested for predetermination of codes in accordance with existing regulation: 01 copy;

c) Technical documents describing in details about components, nature, structure, utilities, operation methods of goods that need to be predetermined the codes: 01 original;

d) Catalogue or image of goods which are requested for predetermination of codes: 01 copy;

dd) Sample of goods for case  which is required to have sample of goods at the request of the General Department of Customs;

e) A list of documents of dossier of predetermination of codes: 01 original.

3. Procedures for predetermination of codes:

a) For organizations or individuals requesting for predetermination of commodity codes

a.1) Filling full information in request for predetermination of codes (made according to the form No. 01/XDTMS/2013 promulgated together with this official dispatch).

a.2) Submitting full dossier requesting for predetermination of commodity codes as prescribed in clause 2 of this Article (excluded point e) to Customs Departments of provinces, cities where are estimated to do customs procedures for goods requested for predetermination of codes (hereinafter referred to as the provincial Customs Departments), within 90 days before exporting or importing the consignments;

a.3) Supplying, supplementing documents, information with the aim to clarify content of request for predetermination of codes to the provincial Customs Departments or the General Department of Customs upon being requested;

a.4) Notifying in writing to the provincial Customs Departments within 10 days after there is any change involving dossier of predetermination of codes, in which clearly state date of arising change.

a.5) Requesting the General Department of Customs for expansion in applying notification on result of predetermination of codes in case where duration of 03 years is expired, if there is no change about information, documents, samples of goods and provisions of law that have been used as grounds for issuance of written notification about result of predetermination of commodity codes.

b) For customs offices:

On the basis of provisions of law, database of goods classification, application of tax levels of customs offices and dossiers requesting for predetermination of codes of organizations and individuals, customs offices shall execute as follows: 

b.1) The provincial Customs Departments check dossier and handle:

b.1.1) If dossier of predetermination of codes is not sufficient, or if the requesting application is not filled with full information according to form: Within 05 working days after receiving the requesting application, the provincial Customs Departments shall have written request to organizations and individuals for supplementation of information, documents, and return dossier of predetermination of codes;

b.1.2) If dossier of predetermination of codes is sufficient, and the requesting application is filled with full information: Within 05 working days after receiving full dossier, the provincial Customs Departments shall have written request to the General Department of Customs for consideration and settlement in which clearly state the proposals for codes of goods requested for predetermination, reason, basis of proposals and enclosed with dossier of predetermination of codes already sent by organizations or individuals.

Dossiers and handling results shall be updated into database of Customs offices.

b.2) The General Department of Customs shall check dossier, written proposals of the provincial Customs Departments and handle:

b.2.1) Within 25 working days after receiving full dossier sent by the provincial Customs Departments (for regular goods) or within maximally 90 working days after receiving full dossier (for goods which must be analyzed, assessed or case of complex goods), General director of the General Department of Customs shall issue written notification about the result of predetermination of codes (made according to Form No. 02/TB-XDTMS/2013 promulgated together with this official dispatch).  The written notification about the result of predetermination of codes shall be sent to organizations, individuals, the provincial Customs Departments and updated in database of customs offices and publicized on the website of the General Department of Customs

b.2.2) In the course of handling dossiers of predetermination of codes which are sent by the provincial Customs Departments, if there are not sufficient grounds, information or in case of having to have samples of goods for predetermination of codes, within 05 days after the date of receiving full dossiers from the provincial Customs Departments, the General Department of Customs shall have written notification to organizations, individuals for supplementation of information, documents or samples of goods in accordance with regulation.

In case a certificate of assessment is required for supplementation, the General Department of Customs shall have written notification to organizations, individuals requested for predetermination of codes so as to send samples to non-business organizations operating in technical service field of Ministries of line management (hereinafter abbreviated to technical organizations) or organizations of assessment service business (in case where technical organizations have written refusal) in order to ask for assessment by experts and send additionally the certificate of assessment to the General Department of Customs.

Duration for handling dossiers of predetermination of codes shall be counted from the date the General Department of Customs receive full information, documents, samples of goods or certificate of assessment, which are supplied additionally by organizations, individuals.

b. 2.3) For cases it is neccessary to verify, clarify at foreign competent agencies, time limit for verification shall comply with agreement as signed with foreign agencies.    Time limit for handling dossier of predetermination of codes shall be counted from the date the General Department of Customs receive verification results of foreign competent agencies.

b.3) General director of the General Department of Customs shall consider to expend application of the written notification about results of predetermination of codes in case organizations or individuals have written suggest.

4. Effect of the written notification about result of predetermination of codes:

a) The written notification about result of predetermination of codes shall be not effect for application in case goods or actual dossiers of export, import are different from goods or dossiers of predetermination of codes.

b) The written notification about result of predetermination of codes shall take effect within maximally 03 years from the  day it is signed for promulgation by the general director of General Department of Customs.

c) When 3-year duration is expired, in case there is no change about information, documents, samples of goods and grounds for issuance of written notification about result of predetermination of codes, the General Department of Customs shall consider to extend application of written notification about result of predetermination of codes at the request of organizations or individuals.

d) General director of the General Department of Customs shall issue documents amending, replacing the written notification about result of predetermination of codes (according to form No. 03/TT-XDTMS/2013 promulgated together with this official dispatch) in case of detecting that the written notification about result of predetermination of codes is unconformable.

e) The written notification about result of predetermination of codes shall cease to be effect in case where regulations of law in serve as grounds for promulgation of written notification about result of predetermination of codes are amended, supplemented or replaced. Time of terminating the effect shall be counted from the date regulations of law in serve as grounds for promulgation of written notification about result of predetermination of codes which have been amended, supplemented or replaced take effect.

d) General director of the General Department of Customs shall issue documents annulling the written notification about result of predetermination of codes in case of detecting that dossiers of predetermination of codes as provided for by organizations, individuals are not correct or truthful.

5. The written notification about result of predetermination of codes is grounds for declaration of codes on the customs declaration and submitted together with customs dossier (01 copy) when doing customs procedures.

6. If do not agree with content of predetermination of codes of the General director of the General Department of Customs, organizations, individuals may have written proposals to the Ministry of Finance for consideration and settlement.

III. Predetermination of customs value for export and import goods (hereinafter abbreviated to predetermination of value)

1. Cases and conditions of predetermination of value:

a) Predetermination of methods for determining taxed value, amounts of plus adjustment, minus adjustment shall be applied to export and import goods if organizations, individuals who request for predetermination of value have not yet exported, imported goods identical with those;

b) For predetermination of price level, apart from meeting conditions stated in point a of this clause, organizations and individuals who request for predetermination of price level must meet full following conditions:

b.1) Having activities of export, import in time of at least full 02 consecutive years counted to day of filing application for predetermination of value. In these 02 yaers, organizations, individuals must:

b.1.1) Not be sanctioned administrative violations on acts of smuggling, illegal transport of goods across the border;

b.1.2) Not be handled on acts of tax avoidance, tax fraud in import and export of goods;

b.2) Have performed payment via bank by L/C method for all export or import goods under the purchase contract, that are requested for predetermination of value.

b.3) All goods in the purchase contract that are requested for predetermination of value, are delivered once.

2. Dossier of predetermination of values:

a) For case requesting for predetermination of method to determine taxed value:

a.1) Request for predetermination of value (made according to the form No. 04/XDTTG/2013 promulgated together with this official dispatch):  01 original.

a.2) Contract of goods purchase by organizations, individuals directly executing transaction as prescribed in clause 1 Article 2 of the Circular No. 205/2010/TT-BTC dated 15/12/2010: 01 copy.

a.3) Technical documents, images or catalogue of goods: 01 copy.

a.4) Vouchers, documents suitable with cases of requesting for predetermination of value supplied by organizations, individuals such as:

a.4.1) For import goods:

- Vouchers, documents proving that the special relation does not influence to the transaction value;  

- Vouchers, documents related to amounts that the buyer must pay but not yet been counted in the purchase price inscribed in commercial invoice;

- Vouchers, documents relating to amounts of plus adjustment;

- Vouchers, documents relating to amounts of minus adjustment;

a.4.2) For export goods: Concerned vouchers in case where the actual sale prices at the export border-gate are not FOB prices, DAF prices.

a.5) A list of vourchers, documents: 01 original.

b) For cases requesting for predetermination of price levels: Apart from vouchers, documents stated in point a of this clause, dossier of predetermination of price levels of organizations and individuals must have vouchers of payment through bank by L/C method for all goods under the purchase contract: 01 copy.

3. Procedures for predetermination of values:

a) For organizations, individuals:

a.1) Filling full information in request for predetermination of value (made according to the form No. 04/XDTTG/2013 promulgated together with this official dispatch);

a.2) Submitting full dossier requesting for predetermination of value as prescribed in clause 2 of this Article to Customs Departments of provinces, cities where are estimated to do customs procedures for goods requested for predetermination of value (hereinafter referred to as the provincial Customs Departments), within 90 days before exporting or importing the consignments;

a.3) Supplying, supplementing documents, participating in dialogue with the aim to clarify content of request for predetermination of value to the provincial Customs Departments or the General Department of Customs upon being requested;

a.4) Notifying in writing to the provincial Customs Departments within 10 days after there is any change in comparison with the dossier of predetermination of value submitted to customs agencies, in which clearly state date of arising change.

a.5) Requesting the General Department of Customs for expansion in applying the written notification on result of predetermination of value in case where duration of 03 years is expired, if there is no change about information, documents and provisions of law that have been used as grounds for issuance of written notification about result of predetermination of value.

b) For customs offices:

On the basis of provisions of law, database of value of customs offices and dossiers requesting for predetermination of value of organizations and individuals, customs offices shall execute as follows:

b.1) The provincial Customs Departments shall check dossier and handle:

b.1.1) If it is not eligible for predetermination of value specified in clause 1 of this Article or contract of goods purchase is made by organizations, individuals who do not directly execute transaction: Within 05 working days after receiving the requesting application, the provincial Customs Departments shall have written refusal for predetermination of value and send it to organizations, individuals;

b.1.2) If it is eligible for predetermination of value specified in clause 1 of this Article or contract of goods purchase is made by organizations, individuals who directly execute transaction but dossier is insufficient or the written request fails to fill full information under the set form: Within 05 working days after receiving the requesting application, the provincial Customs Departments shall have written notification to organizations and individuals for supplementation of information, vouchers, documents, and return dossier of predetermination of value;

b.1.3) If it is eligible for predetermination of value specified in clause 1 of this Article, contract of goods purchase is made by organizations, individuals who directly execute transaction, dossier is sufficient and the written request filled full information under the set form: Within 05 working days after receiving full dossier, the provincial Customs Departments shall have written proposal to the General Department of Customs for consideration and settlement, enclosed with entire dossier requesting for predetermination of value of organizations, individuals.  The written proposal to the General Department of Customs must clearly state opinions and grounds of proposals.

Dossiers and handling results shall be updated into database of value of Customs offices.

b.2) The General Department of Customs shall check dossier, written proposals of the provincial Customs Departments and handle:

b.2.1) Within 25 working days after receiving full dossier sent by the provincial Customs Departments (for regular cases) or within 90 working days after receiving full dossier (for cases which need be verified and clarified), General director of the General Department of Customs shall issue written notification about the result of predetermination of value (made according to Form No. 05/TB-XDTTG/2013 promulgated together with this official dispatch).  The written notification about the result of predetermination of value shall be sent to organizations, individuals and the provincial Customs Departments, concurrently updated in database of customs offices and publicized on the website of the General Department of Customs.

b.2.2) In the course of handling dossier requesting for predetermination of value, if it is neccessary to clarify  information, documents in dossier requesting for predetermination of value, the General Department of Customs may request organizations, individuals for participation in dialogue. In case grounds and information are insufficient, within 05 working days after receiving full dossier from the provincial Customs Departments, the General Department of Customs shall have written notification or request to organizations, individuals for supplementation of information, documents. Duration for handling dossiers of predetermination of value shall be counted from the date the General Department of Customs receive full information and documents, which are supplied additionally by organizations, individuals.

b. 2.3) For cases it is neccessary to verify, clarify at foreign competent agencies, time limit for verification shall comply with agreements as signed with foreign agencies.   Duration for handling dossier of predetermination of value is counted from the date when General Department of Customs receives the verification result.

4. Effect of the written notification about result of predetermination of value:

a) The written notification about result of predetermination of value shall be not effect for application in case goods or actual dossiers of export, import are different from goods or dossiers of predetermination of value; or dossier of predetermination of value has changes.

b) Written notification about result of predetermination of value shall be effective for transactions predetermined value but not exceeding 03 years from the date of signing for promulgation by the General Director of the General Department of Customs  in case of predetermination of method to determine taxed value or directly come into effect for consignments predetermined the price levels.

c) When 3-year duration is expired, in case there is no change about information, documents, and grounds for issuance of written notification about result of predetermination of value, the General Department of Customs shall consider to extend application of written notification about result of predetermination of value at the request of organizations or individuals.

d) General director of the General Department of Customs shall issue documents amending, replacing the written notification about result of predetermination of value (according to form No. 06/TT-XDTTG/2013 promulgated together with this official dispatch) in case of detecting that the written notification about result of predetermination is unconformable. Documents amending, replacing the written notification about result of predetermination of value shall take effect on the date of its signing.

dd) The written notification about result of predetermination of value shall cease to be effect in case where regulations of law in serve as grounds for promulgation of written notification about result of predetermination of value have changes.  Time of terminating the effect shall be counted from the date regulations of law in serve as grounds for promulgation of written notification about result of predetermination of value which have been changed take effect.

e) General director of the General Department of Customs shall issue documents annulling the written notifications about result of predetermination of value in case of detecting that dossiers of predetermination of value as provided for by organizations, individuals are not correct or truthful.

5. The written notification about result of predetermination of value is grounds for declaration of the written declaration of taxed value and submitted together with customs dossier (01 copy) when doing customs procedures.

6. If do not agree with content of predetermination of value of the General director of the General Department of Customs, organizations, individuals may have written proposals to the Ministry of Finance for consideration and settlement.

The Ministry of Finance notify to the provincial Customs Departments for implementation, and publicly post this official dispatch  at head offices of Departments, Sub-department of Customs and guide relevant organizations and individuals for information and implementation.  In the course of implementation, any arising problems should be reported to the Ministry of Finance (the General Department of Customs) for consideration and settlement.

This official dispatch shall cease to be effective when Government’s Decree and Circular of the Ministry of Finance detailing the implementation of a number of articles of the Law amending and supplementing a number of articles of the Law on Tax administration come into effect.