Circular No. 72/2015/TT-BTC dated May 12, 2015 of the Ministry of Finance on application of the priority regime in customs clearance, inspection and supervision of businesses’ imports and exports

CIRCULAR

On application of the priority regime in customs clearance, inspection and supervision of businesses’ imports and exports[1]

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

Pursuant to the Government’s Decree No. 08/2015/ND-CP of January 21, 2015, detailing and providing measures for implementation of the Customs Law regarding customs procedures, inspection, supervision and control;

Pursuant to the Government’s Decree No. 91/2014/ND-CP of October 1, 2014, amending a number of articles of the decrees on taxes;

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

At the proposal of the General Director of Customs,

The Minister of Finance promulgates the Circular on application of the priority regime in customs clearance, inspection and supervision of businesses’ imports and exports.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular prescribes the application of the priority regime in customs clearance, inspection and supervision of imports and exports of businesses, agents and projects eligible for the priority regime; procedures for appraisal, recognition, suspension and termination and the management regime for businesses, agents and projects eligible for the priority regime.

Article 2. Subjects of application

1. Businesses importing or exporting goods.

2. Customs clearance agents.

3. Organizations and individuals importing goods for implementation of key investment projects approved by the Prime Minister before being licensed, which are currently in the capital construction stage.

4. Customs offices, tax agencies.

5. Other related organizations and individuals.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1. “Prioritized business” means an import or export business recognized as a prioritized business by a customs office.

2. “Prioritized agent” means a customs clearance agency service provider recognized as a prioritized business by a customs office.

3. “Prioritized project” means a key investment project approved by the Prime Minister before being licensed, which is current in the capital construction stage and is recognized by a customs office as eligible for the priority regime.

Article 4. Principles for application of the priority regime

1. Imports or exports of a prioritized business or prioritized project or with customs declarations undersigned by a prioritized agent are entitled to the priority regime in customs clearance, inspection and supervision prescribed this Circular for all forms of import or export and at all customs units nationwide.

2. Apart from the priorities prescribed in this Circular, prioritized businesses are entitled to other priorities in the state management of customs for imports and exports in accordance with relevant laws.

Chapter II

PRIORITY REGIME

Article 5. Exemption from document examination and physical inspection of goods

1. Exemption from examination of relevant documents in customs dossiers and exemption from physical inspection of goods in customs clearance, except cases showing signs of law violation or random inspection for evaluation of law observance. The General Director of Customs shall decide on random inspection prescribed in this Article.

2. Physical inspection of goods shall be conducted with scanners.

a/ For export processing businesses, physical inspection of imports and exports shall be conducted when there are signs of violation of the customs law.

b/ For other businesses, the rate of random inspection must not exceed 0.5% of the total number of their import or export declarations.

Article 6. Customs clearance with incomplete customs declarations

1. To be entitled to carry out customs procedures with incomplete customs declarations on the e-customs data processing system of customs offices. Within 30 (thirty) days from the date of registering a declaration, a customs declarant shall update data and relevant documents in the customs dossier as specified in Article 24 of Customs Law No.54/2014/QH13 into the e-customs data processing system of the customs office.

2. In case the e-customs data processing system of the customs office breaks down or temporarily halts operation, a business may carrying out customs procedures with the paper declaration (form No. 01/DNUT promulgated together with this Circular). Within 30 (thirty) days from the date of registration of the declaration, a custom declarant shall submit a complete customs dossier to the customs branch where the business has opened the declaration. The customs branch shall guide the prioritized business in updating data on the customs declaration.

Article 7. Priority in order of customs clearance

1. To be entitled to early physical inspection of goods through scanners, in case of random inspection for assessment of observance of customs declaration regulations.

2. In case a business faces a customs clearance problem, the customs branch shall issue a written reply to the business within 8 (eight) working hours from the time the problem arises.

3. To be entitled to early inspection and supervision in the customs supervision stage.

4. To be prioritized to carry out procedures for checking or taking samples first, for a business wishing to check or take samples of goods.

5. To be prioritized by port, warehouse and storage yard businesses to load, unload or forward goods first.

Article 8. Specialized inspection

1. For goods subject to specialized inspection, the customs office shall accept the business’s declaration of goods’ satisfaction of specialized requirements for customs clearance. The business shall keep all specialized inspection results of competent state management agencies and produce them at the customs office’s inspection request.

2. The business may keep imports in its warehouses pending specialized inspection results.

3. When sampling is required for inspection, the business is entitled to early sampling of goods.

Article 9. Tax procedures

1. To be entitled to tax refund first, inspection later. The tax refund dossier and procedures must comply with the Ministry of Finance’s Circular No. 38/2015/TT-BTC of March 25, 2015. Based on calculations by the business itself, the customs office shall examine the conformity of the dossier. The decision on tax refund shall be issued within 1 (one) working day after receiving a valid dossier from the business.

2. To be entitled to submit the finalization report on imports for processing and export production within 90 (ninety) days from the end of a fiscal year of the business. Based on the business’ finalization report, the customs office shall input data on the e-customs data processing system under regulations and conduct inspection later.

3. Inspection in the cases specified in Clauses 1 and 2 of this Article must comply with Article 25 of this Circular.

4. To enjoy priority in carrying out tax procedures for imports and exports in accordance with the tax law.

Article 10. On-spot import and export procedures

Goods imported or exported on the spot, and materials, components and parts purchased from bonded warehouses for production are entitled to importation first, customs declaration later. Customs procedures must comply with Clause 6, Article 86 of Circular No. 38/2015/TT-BTC of March 25, 2015.

Article 11. Post-customs clearance inspection

1. To be exempted from post-customs clearance inspection at the customs office except cases showing signs of law violation.

2. The customs office shall conduct post-customs clearance inspection at the declarant’s premises for no more than once in three consecutive years on the basis of risk management from the date the General Director of Customs recognized it as a prioritized business except cases showing signs of violation of the customs law.

3. The General Director of Customs shall decide on post-customs clearance inspection at the premises of customs declarants.

Chapter III

CONDITIONS FOR APPLICATION OF PRIORITY REGIME

Article 12. Conditions on observance of customs and tax laws

Within 2 (two) consecutive years up to the date a business has made a written request for recognition as a prioritized business, it does not commit any of the following violations of the tax or customs law to the level subject to sanctioning:

1. Tax evasion, tax fraud, smuggling or illegal cross-border transportation of goods.

2. Administrative violations in the field of customs subject to sanctioning form and level beyond the competence of the customs branch head or an equivalent post holder.

3. For a customs agent, the number of customs declarations undersigned by the customs agent subject to administrative handling in the customs and tax fields by the customs branch head or an equivalent post holder does not exceed 0.5% of the total number of declarations for which customs procedures have been cleared.

4. To have no overdue tax arrears under regulations.

Article 13. Conditions on import and export value

1. The business records an annual import-export value of at least USD 100 million.

2. The business earns USD 40 million or more per year from exports made in Vietnam.

3. The business earns USD 30 million or more per year from the export of farm products and aquatic products produced, reared or cultured in Vietnam.

4. The customs agent annually makes 20,000 or more customs declarations.

The import or export value specified in Clauses 1, 2, 3, and 4 of this Article is the average value of 2 (two) consecutive years up to the date the business has made a written request for consideration, excluding the value of entrusted import and export.

5. Conditions on import and export value do not apply to businesses granted a hi-tech enterprise certificate by the Ministry of Science and Technology under the High Technology Law.

Article 14.  Conditions on e-customs and e-tax procedures

To carry out e-customs and e-tax procedures; to have an information technology program to manage the business’s import-export activities, which meets inspection requirements of customs offices.

Article 15. Conditions on payment for imports and exports

To make payment for consignments of imports or exports via banks in accordance with regulations of the State Bank of Vietnam. Businesses shall notify customs offices of their bank accounts and lists of transaction banks.

Article 16. Conditions on internal control systems

A business satisfies conditions on the internal control system when:

1. It conducts and maintains processes of management, supervision and control of its entire operations; and

2. It adopts measures and has vehicles and internal control process to ensure security and safety of import-export supply lines as follows:

a/ Supervising the transportation of goods from the business to ports and from ports to the business;

b/ Inspecting the safety of containers before goods are loaded onto the vehicle;

c/ Supervising important locations: fences, entrance and exit gates, warehouses, storage yards and production and administrative areas;

d/ Decentralizing the staff in movement and work in the areas suitable to their duties;

dd/ Controlling security of the information technology system;

e/ Staff security.

Article 17. Conditions on observance of accounting and auditing laws

1. To apply accounting standards prescribed by the Ministry of Finance.

2. Annual financial statements are audited by auditing companies eligible for audit service provision as prescribed by the law on independent audit. The audit of financial statements must be an unqualified audit opinion according to Vietnam’s audit standards.

Chapter IV

PROCEDURES FOR APPRAISING, RECOGNIZING, SUSPENDING AND TERMINATING PRIORITIZED BUSINESSES

Article 18.  Dossiers of request for recognition of prioritized businesses

1. A business wishing to apply for the priority regime shall compare itself with the conditions prescribed in this Circular and submit a dossier of request for recognition as a prioritized business to the provincial-level Customs Department of the locality where it is headquartered. A dossier must comprise:

a/ A written request made according to form No. 02a/DNUT promulgated together with this Circular: 1 original.

b/ Audited financial statements for the last 2 (two) consecutive fiscal years: 1 copy;

c/ Auditing reports for the last 2 consecutive fiscal years: 1 copy;

d/ Written inspection conclusions for the last 2 (two) consecutive years (if any): 1 copy;

dd/ A written description of the business’s internal control system detailing the processes of managing, supervising and controlling the business’s operations, controlling the security and safety of the business’s imports and exports supply line: 1 original;

e/ Reward and commendation certificates and quality certificates (if any): 1 copy.

2. For a key investment project approved by the Prime Minister before being licensed, which is currently under the capital construction stage, the project owner shall submit a dossier of request for application of the priority regime to the General Department of Customs. A dossier must comprise:

a/ A written request for application of the priority regime and commitment to implementing the project on schedule according to form No. 02b/DNUT promulgated together with this Circular: 1 original;

b/ Investment certificate, techno-economic explanations: 1 copy.

Article 19. Examination of conditions on recognition of prioritized businesses

1. Dossier examination

Provincial-level Customs Departments shall examine the completeness, lawfulness and validity of dossiers submitted by businesses under Clause 1, Article 18 of this Circular and compare information provided by businesses and collected information on businesses under their management with the conditions on application of the priority regime prescribed in Chapter III of this Circular.

In case a business fails to meet the conditions on application of the prescribed priority regime, the provincial-level Customs Department shall give a written reply, clearly stating the reason.

2. Inspection at businesses

a/ In case the results of dossier examination show the business’s eligibility for application of the priority regime as prescribed by regulations, the provincial-level Customs Department shall conduct inspection at the business which must cover:

a.1. Examining the business’s declared information in its dossier of request for recognition as a prioritized business;

a.2. Comparing inspection results with the report on dossier examination results;

a.3. Post-customs clearance inspection at the customs declarant’s premises to assess law observance, in case the business has not yet been inspected for the last 24 (twenty-four) consecutive months up to the time it has made a written request for recognition as a prioritized business.

The duration of an inspection at a business or a project must be 10 (ten) working days at most, excluding the time of processing post-customs clearance inspection results, for cases subject to post-customs clearance inspection at the customs declarant’s premises.

b/ Within 5 (five) working days after completing a site inspection, including post-customs clearance inspection (if any), the inspecting customs unit shall make a report on dossier examination and site inspection results and send it to the General Department of Customs.

Article 20. Decision on recognition of prioritized businesses

1. Based on the provincial-level Customs Department’s report, customs data, other collected information and results of additional information verification (if any), if the business fails to satisfy the conditions on application of the priority regime, the General Department of Customs shall give a reply to the business, clearly stating the reason.

2. In case the business satisfies the conditions on application of the priority regime, within 10 (ten) working days, the General Director of Customs shall sign a decision recognizing a prioritized business (form No. 03/DNUT promulgated together with this Circular).

Article 21. Suspension of application of the priority regime

1. In case a business has not performed its responsibilities as specified in Article 45 of the Customs Law after being notified by the customs office, the latter shall suspend the application of the priority regime for 60 (sixty) days (the suspension decision shall be made according to form No. 04/DNUT promulgated together with this Circular).

2. During the suspension, the prioritized business shall perform the responsibilities prescribed in Article 45 of the Customs Law, remedy its errors (if any) and the customs office shall cancel the decision on suspension of application of the priority regime (made according to form No. 05/DNUT promulgated together with this Circular).

Article 22. Termination of application of the priority regime

1. A business shall have its application of the priority regime terminated in the following cases:

a/ It no longer satisfies one of the conditions on application of the priority regime prescribed in Chapter III of this Circular;

b/ Past the duration of suspension of application of the priority regime, it fails to comply with Article 45 of the Customs Law;

c/ It requests termination of application of the priority regime.

2. A business subject to termination of application of the priority regime may not be considered and recognized as a prioritized business by the General Department of Customs for the subsequent 2 (two) years.

3. The termination decision shall be made according to form No. 06/DNUT promulgated together with this Circular.

Chapter V

COMPETENCE TO RECOGNIZE ELIGIBILITY FOR, SUSPEND AND TERMINATE APPLICATION OF, THE PRIORITY REGIME, RESPONSIBILITIES OF RELATED AGENCIES

Article 23. Competence to recognize eligibility for, suspend and terminate the application of, the priority regime

The General Director of Customs shall recognize the eligibility for, suspend and terminate the application of, the priority regime.

Article 24. Responsibilities of related agencies

1. The tax agency with which a business has made registration shall coordinate with the customs office in evaluating the business’s observance of the domestic tax law, implementation of e-tax procedures and payment of domestic taxes.

2. Within 10 (ten) working days after receiving a written request from the customs office, the tax agency shall issue a written reply.

Chapter VI

MANAGEMENT OF PRIORITIZED BUSINESSES

Article 25. Management responsibilities of customs offices

Every 3 (three) years, the General Department of Customs shall assess conditions on application of the priority regime and observance of the customs and tax laws to automatically extend the application of the priority regime for prioritized businesses; and examine tax refund and finalization reports (if any) on the basis of risk management under Clause 3, Article 9 of this Circular.

Article 26. Responsibilities of businesses entitled to the priority regime

1.  To observe customs, tax, audit and accounting laws.

2. To make and send quarterly e-reports (according to form No. 07/DNUT promulgated together with this Circular) to the General Department of Customs.

3. Within 90 (ninety) days after the end of a fiscal year, to provide their financial statement and auditing report of the previous year to customs offices.

4. To inspect, detect and remedy errors and report such to customs offices; maintain the conditions required for prioritized businesses.

5. When being notified of their errors or unclear issues in customs dossiers by customs offices, to examine and report fully and promptly on those issues.

6. To notify the General Department of Customs of the list of their customs agents.

Chapter VII

ORGANIZATION OF IMPLEMENTATION

Article 27. Implementation responsibility

1. Pursuant to this Circular, the General Director of Customs shall direct and guide customs offices in the implementation.

2. All related organizations, individuals and businesses shall implement this Circular.

Article 28. Effect

1. This Circular takes effect 45 days from the date of its signing.

2. This Circular replaces the Ministry of Finance’s Circular No. 86/2013/TT-BTC of June 27, 2013, and Circular No. 133/2013/TT-BTC of September 24, 2013.

3. Businesses recognized as prioritized ones under the Ministry of Finance’s Circular No. 86/2013/TT-BTC of June 27, 2013, and Circular No. 133/2013/TT-BTC of September 24, 2013, may continue to apply the priority regime prescribed in this Circular.-

For the Minister of Finance
Deputy Minister
DO HOANG ANH TUAN