Decision No. 640/QD-TCHQ dated April 03, 2006 of the General Department of Customs on promulgating procedures on verification and determination of taxable value for import, export goods

DECISION

ON PROMULGATING PROCEDURES ON VERIFICATION AND DETERMINATION OF TAXABLE VALUE FOR IMPORT, EXPORT GOODS

HEAD OF CUSTOMS GENERAL DEPARTMENT

Pursuant to Law on Customs No. 29/2001/QH10 dated June, 2001 and Law on Amending to and Supplementing of number of Articles of Law on Customs No. 42/2005QH11 date June 14, 2005;

Pursuant to Decree No. 96/2002/ND-CP dated November 19, 2002 of the Government on Functions, Duties, Powers and Structural Organization of the Customs General Department;

Pursuant to Decree No. 155/2005/ND-CP dated December 15, 2005 of the Government 15, 2005 on determination of customary value for import, export goods;

Pursuant to Circular No. 113/2005/TT-BTC dated December 15, 2005 of the Ministry of Finance Providing guidelines on the Implementation of Import, Export Taxes;

At the recommendations of the Chief of Import, Export Taxes Collection Agency.

DECIDES

Article 1. To promulgate in conjunction with this Decision a procedures on verification and determination of taxable value of import and export goods.

Article 2. This Decision shall take its effect 15 days following the date the same is execute and have its validity of replacement of Decision No. 733/TCHQ/QD/KTTT dated July 19, 2004 of the Head of Customs General Department; Decision No. 1361/TCHQ/QD/KTTT dated November 25, 2004 of the Head of Customs General Department; other previous implementing instruments of the Customs General Department regarding the consultation of taxable value.

Article 3. The heads of agency under the management of Customs General Department; Head of Customs Department at the provinces, cities shall be responsible for the implementation hereof.

PROCEDURES ON

VERIFICATION AND DETERMINATION OF TAXABLE VALUE FOR IMPORT, EXPORT GOODS
(Promulgated in conjunction of Decision No. 640 /QD-TCHQ of the Customs General Department dated April 3, 2006)

I/ GENERAL PROVISIONS:

This procedures provide guidelines for stages of verification of declared taxable value and consulting of taxable value, allocation of assignment and duties of each departments in relation to verifications and determination of taxable value.

1/ Verification of declarations of taxable value is aim at legal compliance in declaring of taxable value of the declarer and to ensure a proper and full collection of tax for the State Treasury.

2/ Principle for verification and determination of taxable value: To comply with provisions on verification, determination of taxable value provided in Decree 155/2005/ND-CP of the Government dated December 15, 2005 on verification and determination of import, export goods; Circular No. 113/2005/TT-BTC of the Ministry of Finance dated December 15, 2005 providing guidelines for implementation of import, export taxes; other legal instruments on taxable value.

3/ Responsibilities of Customs Department of Provinces and Cities:

- To give instructions and be responsible for supervision of verification and determination of taxable value, settlement of appeals on taxable value, and ensure unanimous performance of the determination of taxable value at such department. To regularly and timely inspect, enhance and correct the activities of verifications and determinations of taxable values at the department.

- To assign its officers to directly assist sub-department in is verification, consultation and determination taxable value for essential shipments.

- To implement the exploitation and update to taxable value data program (GTT22) information on taxable value of goods in accordance with GTT22’s criteria. To assign its officer to inspect and supervise taxable value in accordance with the heading, groups so that they can set up special team for taxable value of each goods line.

- To regularly implement the verification of pricing data of GTT22 net, and timely discover doubtfull prices for proper settlement.

Basing upon the results of pricing verification results, analysis of status and capability of pricing fraud, from time to time to introduce list of essential goods that may be subject to trade fraud in term of prices and report to the general department for prcing management through a system of risk management.

- To manage the update and exploiation of taxable value data system, transfer of data to the upper level and sharing data to subjected levels, timely provide information on taxable price for the verification of value through out the unit.

4/ Responsibilities of sub-departments: To implement the declaration of taxable value of customs declareres, to carry out taxable value consultation for cases the are required to be consulted and to determine taxable value for cases laid under customs authority as provided by the prevaling laws.

II/ PROCEDURES FOR VERIFICATION AND DETERMINATION OF TAXABLE VALUE:

1/ For dossier of green line:

The verification of taxable value must be conducted by the customs departments following the customs clearance of goods of green line.

Subject to shipment documents and basing upon the prevailing regulations on verification and determination of taxable value and contents that shall pay attentions to during the verification as set out at item 2.1, stage 1 Point 2 below, the customs officers shall verify the legal compliance with respect to the determination of taxable value of the declarer, re-inspect the declared value on the available information at the customs department.

Verification at the department. The duration for the verification shall be exended to the collection and completion of documents as provided by the laws.

Results of Inspection:

1.1/ Where there is no breach to the prevailing regulations on determination of taxable value or doubtfullness on violation or declared value, the documents shall be transfered to the next stages ofthe current progress.

1.2/ Where there are breaches to prevailing regulations on determination of taxable value, the officer shall report to the Head of Department to reject the declared information and re-calculate taxable value in line with stages 3 of this item 2. The results thereof must be updated to the GTT22 program.

1.3/ In cases the verification shows that there may be certain threanten of violation of taxablu value (as provided at Item 2 Section III below), the officer shall report to the Head of Dpeartment all doubtfullness and bases thereof for the purposes of verification after the clearance. Following the agreement of the Head of Department to transfer the case to department responsible for verification after clearance, such transfer must be make in accordance with form 3 attached herewith.

2/ For Dossier of yellow and red lines:

Stages 1: Verification on details of taxable value declaration:

2.1/ Scope of verification:

Subject to the dossier and regulations on taxable value, the officer shall conduct a detailed verification of declarer’s compliance with prevailing regulations on determination of taxable value basing upon available at the customs office. The verification shall be performed at the customs office during the clearance. Certain essential issues are comprised of:

a/ For cases declarers determine taxable value by way of transaction value, followings issues must be verified:

- Conditions of application: to reconcile these issues to provisions of Circular 113/2005 of the Ministry of Finance dated 15, 2005 in order to verify commercial contract and import dossier. For cases where special relation is declared, verification of effectiveness of such special relations to transaction value must be conducted prior to a rejection of transaction value, such verification may be performed by comparing declared value to information available at the customs office.

- Uniformity of commercial invoice and supported documents ( contract, purchase order, insurance policy, etc.)

- Uniformity of adjustments made under provisions of Section VII Schedule 1 of Circular No. 113/2005/TT-BTC of the Ministry of Finance dated 15, 2005 to relevant documents.

b/ For cases declarers determine taxable value by way of transaction value of similar or identical goods, following issues must be verified:

- Reconciliation of number of declaration of identical or similar goods to data stored at customs office.

- Whether actual import goods (as stated on the dossier, a physical inspection may be conducted subject to the Head’s decision) and sample goods are satisfied requirements applicable for identical or similar goods.

- Whether the applied method for determination of taxable value of identical or similar goods is transaction value.

- Condition on schedule for export of the shipments.

- Unit price adjustments: where there is no suitable supporting document for unit price adjustment, declared value shall not be accepted.

c/ For cases declarers determine taxable value by way of deduction method, following issues must be verified:

- Whether actual import goods (as stated on the dossier, physical inspection may be conducted in accordance with the Head’s decision) and sample goods are satisfied all requirements applicable for identical or similar goods.

- Legality and appropriation of invoices, transportation documents, insurance for matters arising in domestic market.

- Applied unit prices.

- Suitability of deducted expenses to the prevailing accounting regulations.

- Sale duration after the import.

- Whether relationship between the imported and purchaser affect the re-sale prices?

d/ For cases declarers determine the taxable value by way of computing value, following issues must be verified:

- suitability between original documents and submitted copies (certified true copy).

- suitability between producer’s explanation, supporting documents of cost of production directly related to production of imported goods, general expenses and interest, transportation fee, insurance, and invoices of producers.

e/ For cases declarers determine taxable value by way of reasoning, following issues must be verified:

- suitability between applicable method and principles provided in Decree No. 155/2005/ND-CP and Circular No. 113/2005/TT-BTC.

- Accuracy, objectiveness of supporting documents and data used for determination of taxable value.

2.2/ Dealing with verification results:

a/ Should the verification do not reveal any violation of prevailing rules and provisions concerning the determination of taxable value and there is doubtfulness of declared taxable value, such declared taxable value must be accepted and dossier thereof shall be transferred following stages of applicable procedures.

b/ Should the verification reveal any violation of prevailing rules and principles concerning the determination of taxable value, customs officer shall report to the head of customs department to reject declared taxable value and determined taxable value during the clearance as provided at stage 3 hereof.

c/ Should the verification reveal any doubtfulness of declared taxable value (in accordance with item 2 Section II below), customs officer shall report to the head of customs department such doubtfulness and basis thereof for his decision on consultation for such doubtfulness. Where there is approval on consultation, customs officer shall inform declarers of temporary acceptance of declared taxable value and consultation thereof shall be made so that they can explain and submit further supporting documents for clarification at the latest of 30 days (working days) as from the date of clearance. Noticed information must be expressly provided at item 37 of declaration form.

d/ For e-customs, works of point b and c of item 2.2 shall be carried out as follows: if the verification process must include with determination of taxable value (point b) or with consultation and determination (point c), dossier must be transfer to ex-clearance inspection team under e-customs for its consultation, determination of taxable value in accordance with prevailing procedures for determination of taxable value.

Stage 2: Consultation

Consultation on taxable value shall be conducted in accordance with Section II below.

Stage 3: Determination of taxable value

Taxable value shall be determined by customs department for cases as provided in Stage 1, item 2 hereof.

Taxable value determination shall be conducted in accordance with provisions of Circular No. 113/2005/TT-BTC of the Ministry of Finance dated December 15, 2005 basing upon available information of customs office. Applied bases and method must be expressly noticed.

Customs officer must submit the dossiers for head of customs department approval of results of the determination of taxable value with respect to cases subject to be determined of taxable value, send a notice of the same to declarers for their implementation (form 2 attached hereof), such notice must be filed together with import dossier.

Stage 4: Updating of results to GTT22

All data processed during the clearance must be timely updated to GTT22 program of such declaration.

III/ REGULATIONS ON TAXABLE VALUE CONSULTATION:

1/ Purposes of consultation :

Taxable value consultation is a skills of customary professional process. Consultation aims at determination of truthfullness of declared taxable value as the same may be doubted by the customs and give the declarers a chance to submit further supporting documents for proving of such truthfulness or let them acknowledge the correctness of customs doubts, or their violation during the declarations.

2/ Cases subject to be consulted:

For the purposes of ensuring of efficiency of consultation and keep the entities harmless, consultation shall only be conducted to shipments subject to the two following conditions:

2.1/ Should customs find any doubtfulness concerning truthfulness of any submitted document of declared data concerning the determination of taxable value during the verification of taxable value, but the customs do not have sufficient basis for conclusion of the same;

2.2/ Declared taxable value of import goods is 90% lower than transaction value (which is undoubted and accepted to be taxable value), or value determined by method 2 – 6 applicable for identical or similar goods export on the same date or within 60 days (calendar days) before or after the date the shipment in question is exported available in customs taxable value system (GTT22).

Notes:

- Should there be any identical shipment of the same company owning shipment in question, consultations thereof should be conduct at the same time.

- For shipment that is identical to shipments of the same company which are subject to be consulted previously but declared taxable values thereof have yet be rejected and are undergone with ex-clearance inspection procedures, dossiers and doubtfulness thereof shall be transferred ex-clearance inspection team to monitor together with previous shipments

- For shipment identical to shipments of the same companies which have undergone consultations but yet be rejected due to lack of bases and taxable value thereof have been accepted, no transfer for ex-clearance were made, consultation shall not be made, should there be no new information in comparison with previous shipments,

3/ Mode of consultation and timeline:

3.1/ Consultation must be conducted directly and the customs must request the companies to come for direct consultation.

The customs must request the companies to send their representatives who can make decision and have his knowledge of issues that the customs request to clarify or any person that authorized by the person in charge (these issues must be clearly provided in the invitation).

A written request for clarification may be sent prior to the consultation where the same is so required; however in all case timeline must be complied.

3.2/ Consultation must be conducted within 30 days (working days) after the clearance. Consultation must be conducted at the earliest as the case may be and shall only prolong for 30 days at the maximum for complicated case or for companies that subject to many consultations.

4/ Conducting of Consultation:

Stage 1: Approval and assignment

- Should the officer in charge with dossier verification discover any doubtful issues as provided in item 2 of this section, he shall report to the head of customs department for his approval of consultation.

- For e-customs department, officer in charge with dossier verification discover any doubtful issues as provided in item 2 of this section, he shall input his verification results to the system and transfer the dossier included with the doubtfulness (if any) to ex-clearance inspection team for reporting to the head of customs department for his approval and carrying out following necessary stages of consultation.

- Head of customs department shall approve the initiation of consultation, issues required to e clarified; assignment for consultation must be include with 2 individuals. Head of department shall approve the consultation during the clearance time.

Stage 2: Preparation for Consultation

Officer assigned for consultation must studies the files and submit to the department head for his execution of consultation notice and send the same to declarer requesting for consultation in accordance with form 1 attached hereto. Timetable for consultation shall be decided on case by case basis in accordance with timetable for consultation as provided herein and in conformity with the study and preparation of relevant files.

Officer assigned for consultation must carefully study the files, prepare relevant questions for doubtful issues, pricing data available at the time of discover and at the time of rejection, and especially must recommend method should be apply for re-determination.

* Documentation preparation for consultation:

Documentation shall be prepared separately for each shipment and must be filed together with import dossier. Documents to be filed must include with all files relating to the consultation of such shipment.

* Preparation of relevant file and information:

- Files, data that are related to price of imported goods subject to be consulted and company’s import activities.

- Prices of identical or similar shipments that are exported to Vietnam on the same date or within 60 days (calendar day) before or after the export date of consulted shipment, in GTT22 system.

- Status of onshore and offshore market relating to consulted goods during a period closed to the imported time of consulted shipment, selling prices on domestic market (whole sales, retail sales,...), consumption of consulted goods.

- To collect, prepare other relevant information and files: by searching internet, domestic and international pricing magazines, domestic data, etc. Such information (if any) must be printed out for filing together with the consultation documentation. In addition, information relating to company profile shall also be collected for the purposes of facilitating the consultations.

Apart from the above factors, to ensure the accuracy, objectiveness, and efficiency of the consultation, studies and analysis of information directly related to the declaration: essential goods that are subject to high tax obligations, big value which are easily subject to pricing fraud, regularly breached by big companies; goods that originate from countries, territories containing high risk, or are of seasonal nature or containing technology development factors, common variety of international market, etc

* Questionnaire preparation for particular shipment: Specific doubtful issues affecting declared value must be determined for preparation of questionnaire. On the cases by case basis, questions must focus on clarifying certain following fundamental issues: issues on operation of companies, companies’ clients, mode of contract execution concerning the prices, payments, merchandise characters, sale following the import, etc.

Stage 3: Conducting of consultation:

- Officer conducting the consultation must have his behavior of a politeness and courteousness manner, clearly explain to the declarers their right and obligations in connection with the consultation for their advance co-operation with the customs with regard to the clarification f declared value. Such explanation must provide a benefit of consultation in connection with anti-pricing fraud for the purposes of avoiding losses to the State Treasury, maintaining the fairness among the companies; inform the companies of right and obligations of customs during the consultation, and notice of legal proceedings that may be applicable where the companies intentionally commits tax evasion (through ex-clearance inspection, anti-smuggling, coordinate among Vietnamese customs and customs or other forces of relevant countries, etc.).

- Questioning and listening to companies’ answers, forcing shall be avoided, focusing on question for clarifying doubtful issues and making comparison to discover contradictories between information provided by the companies (answers and import dossier and available information verified by the customs). Unreasonable issues of declared information must be pointed out in comparison with identical or similar shipment or with market information in connection with international and domestic pricing data. Unreasonableness of declared value due to composition of cost of production must also be pointed.

Notes: During the consultation, it is not necessary to introduce all the question or be limited in prepared questions, appropriate measures during the process may be applied as the case may be.

- Minutes of consultation must be made at the end of each consultation, consulted issues, regulations citations, basis for acceptance or rejection, opinion of customs office on acceptance or rejection must be provided. Minutes must includes with parties’ signatures.

- Reporting to department head of consultations results and recommendation on dealing measures.

Stage 4: Dealing with consultation results

a/ Declared value shall not be accepted in the following cases:

* Customs office shall nor accept declared value due to following specific reasons:

- Upon the expiry of consultation time limit, declarers still refuse to join the consultation, do not explain, furnish relevant documents to the customs office for verification of declared value.

- Declarers are unable to respond to consulted issues, or to clarify the truthfulness and accuracy of declared value as requested by the customs.

- Answers by declarers are conflict to the dossier.

- Declarers fail to inform or inaccurately inform of actual price that are paid or obliged to be paid as provided in Circular No. 113/2005/TT-BTC of the Ministry of Finance dated December 15, 2005.

- Information furnished by declarers is verified to be inaccurate, supporting documents are fake or inappropriate or illegal.

- Declarers or their authorized persons acknowledge that declared values are not in line with actual transaction.

- Information collected by the customs through its professional skills reveal declared value is untrue.

* For cases that declared values are not accepted, proposal for determination of taxable value shall be conducted in line with Stage 3 of point 2 section 2 hereof.

Where there is approval of department head on dealing with consultation results, customs office shall inform the declarers of rejection of declared value (together with basis thereof) and newly determined taxable value for their implementation. Notice shall be made in form 2 attached hereto.

Time limit for determination of taxable value and informing to declarers shall be limited at the maximum of 5 days (working days) as from the date the minutes of consultation is signed.

b/ Acceptance of declared value:

Declared value shall be accepted where the declarers can introduce their e on the truthfulness, accuracy of declared value as requested by the customs. In cases where the declared values are accepted, following the department head approval, notice in writing must be sent to the declarers if so requested by the latter.

c/ After the consultation, should the customs cannot reject declared values in accordance with point (a) as provided above, but there are still certain doubtfulness, customs office shall report to the head of customs department fro transfer all doubtful information and basis thereof to ex-clearance inspection team for next inspection. Transfer shall be made in form 3 attached hereto following the department head’s approval.

d/ All documents, files relate to the consultation must be filed together with dossier of such shipment.

IV/ RELATION BEWTEEN EVALUATING SKILLS AND EX-CLEARANCE INSPECTION:

All customs department must stipulate the coordinate between the evaluation unit and ex-clearance inspection for the purposes of prevention for and fighting with trade fraud through prices.

For cases of doubtfulness on declared values transfered to ex-clearance inspection, evaluation unit must prepare files compsoed of sufficient collected documents and clearly provide all doubtful issues so that the ex-clearance can have their for appropriate action.

Upon receipt of files transfered from evaluation unit, ex-clearance inspection team must analyse the documents to proceed with the ex-clreance inspection in accordance with ex-clearance inspection, conclusion on taxable value must be inform to evaluation unit for the latter update of comon data..

V/ IMPLEMENTATION:

- Head of Customs Department of provinces and cities shall be responsible to Head of General Customs Department in connection with their instruction in strictly implementation of the aforementioned contents to prevent trade fraud through prices.

- Pursuant to the above provisions, local customs department may based upon its conditions to issues particular instruction for performance of professional skills and internal reporting timeline in accordance with the general customs department.

- Local customs departments shall timely inform the general customs department of any struggles during the implementation hereof for its appropriate resolution.

FORM 1:

NOTICE OF CONSULTATION

NOTICE

Re: Taxable Value Consultation

- Pursuant to Decree No. 155/2005/ND-CP of the Government dated December 15, 2005 on determination of taxable value for import, export goods;

- Pursuant to Circular No. 113/2005/TT-BTC of the Ministry of Finance dated December 15, 2005 providing guidelines for implementation of import, export tax;

- Basing upon the verification of declared taxable value of declarer

Sub-Customs Department of ............................................. hereby notices

Declarers:

Tax I.D.:

Address:

Phones:

FAX:

Imported goods:

Pursuant to declaration no. …….. dated ….. at …….

To present at customs office for consultation of declared taxable value (explanation and furnishing of relevant documents to prove the truthfulness and accuracy of declared value).

Location of consultation …..

Time of Consultation …..

Documents Required for Consultation: (documents required by the customs for clarifying of each particular doubtful issues).

It is hereby request the your company to assign its duly representative to join the above consultation timely.

Respectfully!

FORM 2

NOTICE ON RE-DETERMINATION OF TAXABLE VALUE

NOTICE

Re: Re-determination of Taxable Value for imported goods

To: (Name of Declarers and its tax I.D.)

Pursuant to Decree No. 155/2005/ND-CP of the Government dated December 15, 2005 on determination of taxable value for import, export goods;

Pursuant to Circular No. 113/2005/TT-BTC of the Ministry of Finance dated December 15, 2005 providing guidelines for implementation of import, export tax;

Pursuant to the results of verification and determination of taxable value at declaration no. .................;

Basing upon consultation results as set forth in minutes ............. (for cases of consultation)

Sub customs department of ............................................................. hereby notices:

1/ Not to accept declared value of import shipment as stated in declaration no. ............. dated ............................ at ................. as follows:

2/ results of re-determination of taxable value of imported goods as stated in declaration no. ................. dated..................... at ............................ as follows:

3/ Basing upon taxable value determined at point 2:

Total additional taxable amount that your company is required to pay is:……(to be stated in particular for each type of goods and in total amount )

Deadline for additional payment:……..

Sub Customs Department of ......................... hereby advise your company for your information and timely implementation.

FORM 3:

TRANSFER NOTE TO EX-CLEARANCE INSPECTION TEAM

TRANSFER NOTE

To: Ex-clearance Inspection Team

Case brief:

Name of Importer:

Declaration No.:

Imported Goods:

Doubtful Issues:

Consultation results (minutes attached, if any):

Available information relating to import dossier:

It is requested to clarify the aforementioned issues.

Should the inspection reveal any differences between declared value and imported value, please kindly inform the same to evaluation for update of pricing data system.