Chương 2 Nghị định 40/2007/NĐ-CP: Phương pháp xác định trị giá tính thuế hàng hoá nhập khẩu

Chapter II

METHODS OF DETERMINING DUTIABLE VALUE OF IMPORTS

Article 7 Method of determining dutiable value on the basis of the transaction value of imports

1. The dutiable value of imports shall be their transaction value.

The transaction value shall be the price actually paid by the purchaser or which the purchaser will have to pay for goods sold in order to export them to Vietnam after making the adjustment stipulated in article 13 of this Decree.

The price actually paid or to be paid shall be fixed as the total amount of money paid by the purchaser or which the purchaser will have to pay directly or indirectly to the seller in order to purchase imported goods, and shall include the following items:

(a) Purchase price shown on the commercial invoice. When such price includes allowances or reductions for the consignment of imported goods in accordance with international commercial practice, such allowances or reductions shall be deducted when determining dutiable value.

The Minister of Finance shall provide specific regulations on the deduction of these allowances or reductions when determining dutiable value.

(b) Monetary amounts which must be paid by the purchaser but are not included in the purchase price shown on the commercial invoice, including:

- Advance payments, and deposits for production, sale and purchase, freight and insurance of goods;

- Indirect payments to the seller such as amounts paid by the purchaser to a third party at the request of the seller; and amounts paid by way of debt clearing.

2. The conditions applicable to the method of determining dutiable value on the basis of transaction value shall be:

(a) The right of the purchaser to dispose of or use the goods after import is unrestricted, except for:

- Restrictions on the purchase, sale and use of goods pursuant to the law of Vietnam;

- Restrictions on places where the goods may be sold after import;

- Other restrictions which do not affect the value of the goods;

(b) The price of the goods or the sale does not depend on conditions or payment items for which the value of the goods is indeterminable;

(c) After resale of the goods, the importer must not pay any additional amount from the proceeds from the disposal or use of the goods, excluding the adjusted amounts stipulated in article 13.1(d) of this Decree;

(d) The purchaser and seller do not have a special relationship, or if they do it does not affect the transaction value.

3. Proving a special relationship shall not affect the transaction value.

(a) Where the customs office has grounds for believing that a special relationship affects the transaction value, the customs office must immediately notify the grounds in writing to the customs declarant.

(b) The customs office shall facilitate the customs declarant to supply more information in order to clarify that the special relationship between the purchaser and the seller does not affect the transaction value. If on the expiry of thirty (30) working after the date of receiving a notice from the customs office, the customs declarant has failed to supply additional information, the customs office shall determine dutiable value pursuant to article 15.7 of this Decree.

(c) The special relationship between the purchaser and the seller shall be deemed not to affect the transaction value when one of the following conditions is satisfied:

- Results of a check of the purchase and sale transaction of the imports show that such transaction was conducted the same as with purchasers without a special relationship and that the special relationship did not affect the price of the goods;

- The transaction value approximates to one of the following values of a consignment of goods exported to Vietnam on the same day or within sixty (60) days before or after the exportation of the consignment of goods being valued:

(i) The transaction value of identical or similar imported goods sold to other importers not having a special relationship with the exporter (the seller);

(ii) Dutiable value of identical or similar imported goods determined pursuant to article 10;

(iii) Dutiable value of identical or similar imported goods determined pursuant to article 11 of this Decree.

Article 8 Method of determining dutiable value on the basis of transaction value of identical imports

1. For imports for which the dutiable value cannot be determined pursuant to article 7 of this Decree, the dutiable value shall be the transaction value of identical imported goods for which dutiable value has been determined pursuant to article 7 of this Decree.

2. Identical imports must satisfy the following conditions:

(a) Identical consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) ldentical consignments of imported goods were traded at the same level or have been adjusted to the same level of wholesale or retail; and had the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) ldentical consignments of imported goods had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on identical imported goods.

4. If two or more transaction values of identical imported goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 9 Method of determining dutiable value on the basis of transaction value of similar imports

1. For imports for which dutiable value cannot be determined pursuant to articles 7 and 8, dutiable value shall be the transaction value of similar imports for which dutiable value has been determined pursuant to article 7 of this Decree.

2. Similar imports must satisfy the following conditions:

(a) Similar consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) Similar consignments of imports were traded at the same level or have been adjusted to the same level of wholesale or retail; and have the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) Similar consignments of imports had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on similar imports.

4. If two or more transaction values of similar goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 10 Method of determining dutiable value on the basis of deductible value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7, 8 and 9 of this Decree, dutiable value shall be the deductible value which shall be determined on the basis of the sale price of the imports, identical imports or similar imports on the Vietnamese market less reasonable expenses arising after importation.

2. The sale price of the imports on the Vietnamese market shall be determined on the following principles:

(a) The sale price of the imports shall be the actual sale price; but if there is no actual sale price then the actual sale price of identical imports or similar imports in the same condition as when they were imported and sold on the domestic market shall be used as the actual sale price;

(b) The importer and the domestic purchaser have no special relationship;

(c) The sale price is calculated on the largest quantity of goods sold and is sufficient for the formation of a unit price;

(d) The goods are sold (wholesale or retail) on the earliest day after importation but no later than ninety (90) calendar days after the date of importation of such consignment of goods.

3. Reasonable expenses arising after importation of goods:

(a) Where the importer purchases goods by the mode of definitive purchase and sale, deductions shall include:

- Expenses being freight and insurance when the goods are sold on the domestic market;

- Taxes, charges and fees payable to the State budget upon import and sale of the goods, which under current law are accounted into sales turnover, cost price and expenses of the sale of the imports;

- General management expenses related to the sale of the imports;

- Profit on sale earned after import of the goods.

(b) Where the importer is the selling agent for a foreign business entity, sale commission shall be a deductible expense.

Where the selling agent is authorized by the foreign business entity to carry out some post import activities in Vietnam outside the agency contract, expenses arising in Vietnam for these activities shall also be deducted within the limit of expenses agreed in the contract.

Post import expenses deducted pursuant to clause 3 of this article must truthfully reflect general expenses and actual profit which are normal in dealings in such line of goods.

4. The dutiable value of imports undergoing further processing in Vietnam shall also be determined on the principles stipulated in clause 1 of this article, and expenses for processing which add value to the goods shall be deducted.

The method of determining dutiable value on the basis of the deductible value stipulated in this article shall not be applied when:

- The imports, after being processed, are no longer in the same condition as when imported;

- The imports, after being processed, still maintain the same characteristics, nature and utility as when imported but such goods constitute only a part of the goods sold on the Vietnamese market.

When imports after being processed are no longer in the same condition as when imported but their value added by processing can still be accurately determined, their dutiable value shall still be determined pursuant to this article.

5. The data for calculating deductible value shall be supplied by the importer or its agent, except where such data is inconsistent with data collected from transactions being sales in Vietnam of imported goods of the same grade or category.

If the data supplied by the importer is inconsistent with data collected from transactions being sales in Vietnam of imported goods of the same grade or category, then deduction of profit and general expenses shall be based on objective and quantifiable data apart from the information supplied by the importer or its agent.

6. The expenses and profit stipulated in clauses 3 and 4 of this article must be recorded and reflected in accounting books in accordance with the law on accounting, and must be considered on an overall basis when determining dutiable value pursuant to this article.

Article 11 Method of determining dutiable value on the basis of computed value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7 to 10 inclusive of this Decree, dutiable value shall be the computed value which shall include the following items:

(a) Cost price or value of raw materials and supplies, and expenses of the production stage or of other processing during manufacture of the imports and including:

- Expenses stipulated in article 13.1(a);

- Value of the goods or services stipulated in article 13.1(b) if such goods or services were supplied by the purchaser directly or indirectly for use during manufacture of the imports.

Dutiable value may only include items being the cost of technical equipment and expenses for construction designs, implementation plans, art designs, model designs, plans and sketches if such work was performed in Vietnam and was necessary for the manufacture of the imports;

(b) Expenses for and profit from sale of the imports;

(c) Adjusted expenses as defined in article 13.1 (dd) and (e) of this Decree.

2. The expenses and profit used to calculate computed value stipulated in this article must be considered on an overall basis.

3. The determination of computed value must be based on data supplied by the manufacturer and be in accordance with accounting principles of the country where the goods were manufactured, but data supplied by the manufacturer which is inconsistent with data collected in Vietnam shall be excluded.

4. It shall not be permitted to inspect or require presentation for inspection of the accounting books or any other file whatsoever of a non-resident of Vietnam for the purposes of determination of the computed value stipulated in this article.

Evaluation of information supplied by the manufacturer of the goods assisting determination of the computed value stipulated in this article may take place outside Vietnam if:

(a) The manufacturer consents; and

(b) Advance notice is provided to the competent body of the country concerned and such body consents to the evaluation taking place.

Article 12 Deductive method of determining dutiable value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7 to 11 inclusive of this Decree, dutiable value shall be determined by the deductive method.

The deductive method means the sequential and flexible application of each method for determining dutiable value stipulated in articles 7 to 11 inclusive and stopping at the method by which the dutiable value can be determined, provided that such application complies with clause 2 of this article and is based on data, figures and information available at the time of determining the dutiable value.

2. When the deductive method is applied, the following values must not be used to determine dutiable value:

(a) Domestic market sale price of goods of the same category manufactured in Vietnam;

(b) Sale price of goods on the domestic market of the exporting country;

(c) Sale price of goods for export to another country;

(d) Expenses of manufacture of goods, excluding those of manufacture of imports stipulated in article 11 of this Decree;

(dd) Minimum dutiable price;

(e) All types of assumed or arbitrary prices;

(g) A valuation system permitting the use of the higher of two alternative values as the dutiable value.

Article 13 Adjustments

1. The following items shall be added to the transaction value when determining dutiable value:

(a) Expenses which must be borne by the purchaser but are not yet included in the transaction value:

- Seller's and broker's commission;

- Cost of packaging deemed part of the imported goods.

Packaging deemed part of imported goods means packaging which always accompanies the goods as a condition for preservation or use of such goods, and which is classified together with the goods according to current classification principles and goods' codes.

- Cost of packing, including cost of materials and labour.

(b) The value of goods and services supplied free of charge or at a reduced cost by the purchaser to the seller to manufacture and sell goods imported into Vietnam, not yet included in the price actually paid or to be paid including:

- Raw materials, component parts and similar accessories incorporated into the imports;

- Tools, dies, moulds and similar accessories used in the manufacture of the imports;

- Raw materials and materials consumed in the manufacture of the imported goods;

- Technical designs, construction designs, implementation plans, art designs, model designs, plans and sketches made overseas and necessary for the manufacture of the imported goods;

(c) Royalties and licence fees for the use of intellectual property rights related to the imports which must be paid by the purchaser as a condition for purchase and sale of the imports;

(d) Proceeds collected by the purchaser after the disposal or use of the imports and transferred in any form to the seller of the imports;

(dd) Expenses for transport, loading and unloading and handling of goods for transport to the bordergate of importation;

(e) Expenses to insure the goods for freight to the bordergate of importation.

2. The following items shall be subtracted from the transaction value if they are already included in the purchase price of the imports:

(a) Expenses for activities arising after importation including expenses for construction, architecture, installation, maintenance or technical assistance;

(b) Expenses for domestic [i.e. within Vietnam] freight and insurance arising after importation;

(c) Taxes, charges and fees payable to the State budget which are incorporated in the purchase prices of the imports;

(d) Any discount made before loading the goods onto the means of transport in the exporting country, expressed in writing and submitted together with the import customs declaration;

(dd) Expenses which the purchaser must bear relating to marketing of the imported goods, namely:

- Market research regarding the product about to be imported;

- Advertising the trademark of the goods to be imported;

- Exhibiting and presenting the newly imported goods;

- Participation of the imports in exhibitions and trade fairs;

- Expenses for inspecting quality and quantity prior to import. However these expenses may not be excluded from the transaction value if the purchaser and seller agreed they would form part of the actual price paid by the purchaser or which the purchaser will have to pay for the goods;

- Expenses for opening a letter of credit to pay for the consignment of imported goods, if paid by the purchaser to its agent bank to make payment for the imports;

(e) Interest as financially agreed by the purchaser and relating to the purchase of the imported goods may be subtracted from the transaction value if the following conditions are satisfied:

- The financial agreement is in writing;

- On request the customs declarant will prove that the declared value is essentially the price paid by the purchaser or which the purchaser will have to pay for the goods; and

- The declared interest rate does not exceed the normal rate in Vietnam at the time of making such financial agreement;

- There are objective data and quantifiable figures justifying subtraction of interest from the price paid by the purchaser or which the purchaser will have to pay for the goods.

3. The addition or subtraction of the expenses stipulated in clauses 1 and 2 of this article shall only be made on the basis of available, objective and quantifiable data which complies with the law on accounting.

4. No item other than those stipulated in clauses 1 and 2 of this article may be added or subtracted.