Chương I: Thông tư 205/2010/TT-BTC Những quy định chung

Chapter I

GENERAL PROVISIONS 

Article 1. Scope of governing and subjects of application

1) Scope of governing: This Circular guides the inspection, determination of customs value aiming to calculate tax and collect statistic for imported, exported goods.

2) Subjects of application: Organizations and individuals who export and import goods, customs agencies, customs officers and other organizations and individuals who perform tasks related to inspection and valuation of exported and imported goods.

Article 2. Interpretation of Term

The terms used in this Circular are construed as follows:

1) Goods purchase and sell contracts: mean the agreements to purchase and sell goods which are established in writing or other forms with validity equivalent to the written documents including telegraph, telex, fax and data messages. Accordingly: the seller is obliged to deliver goods, transfer ownership of goods to the buyer and receive payments; the buyer is obliged to pay for the seller and receives goods; goods are transferred from the seller to the buyer, through border gate, Vietnam border or from the duty-free zones into the domestic market or from domestic market to the duty-free zones.

Sellers include goods sellers, service providers.

2) Commission of purchase: means an amount that the buyers make payment to their representative agents to buy imported goods at most reasonable prices. 

3) Commission of sale: means an amount that sellers make payment to their representative agents to sell exported goods for buyers.

4) Brokerage fees: means an amount that the buyers or sellers or both buyers and sellers must pay to the brokers to assume the role of intermediaries in the transaction of purchasing, selling imported goods.

5) Copyright fees: means an amount that the buyers must pay directly or indirectly to the subject of intellectual property rights, to be transferred ownership or right to use the intellectual property rights.

5.1) Intellectual property rights: mean the rights of organizations and individuals for intellectual property, including copyrights and rights related to copyright and industrial property rights and rights for plant varieties.

5.1.1) Copyrights are the rights of organizations and individuals for the work they created or owned.

5.1.2) Rights related to copyright are the rights of organizations and individuals for their performances, recordings, video recordings, broadcast programs, satellite signals carrying encrypted programs.

5.1.3) Industrial property rights are the rights of organizations and individuals for the inventions, industrial designs, layout designs of semiconductor integrated circuits, trademarks, trade names, geographical indications, trade secrets created by their own or ownership and the rights against unfair competition.

5.1.4) Rights for plant varieties mean the rights of organizations and individuals for the new plant varieties created or discovered and developed by their own, or are enjoyed the ownership.

Contents of the rights as provided in the Law on Intellectual Property.

5.2) Subjects of intellectual property: mean the owners of intellectual property rights or organizations, individuals that are transferred intellectual property rights by its owner.

6) License fees: mean an amount that the buyers must pay directly or indirectly to the subjects of intellectual property rights to perform some activities within the rights of industrial property rights.

7) Goods with value which are considered "approximate" with each other: If the difference between them affected by the following objective factors:

7.1) The nature of the goods, the nature of the goods producing sector;

7.2) The seasonal nature of goods;

7.3) The insignificant difference on commerce.

While considering the approximation of the two values, it must be put on the same purchasing and selling conditions.

8) Identical imported goods: mean imported goods which are identical in all respects, including:

8.1) Physical characteristics such as product surface, component materials, manufacturing methods, function, purpose to use and mechanical, physical, chemical nature...;

8.2) Products quality;

8.3) Reputation of brands;

8.4) Being produced in the same country, by the same producer or authorized producer.

The imported goods which basically satisfy the conditions being identical imported goods, but having insignificant differences in appearance such as color, size, style without affecting value of goods shall still be considered as identical imported goods.

The imported goods are not considered identical goods if in the process of producing such goods, producers used the technical design, construction design, planning of implementation, art design, the design drawings, diagrams, scheme of similar products and services which are made in Vietnam provided free to the sellers by buyers.

9) Similar imported goods: means the goods, though not identical in all aspects, but they have the same basic characteristics, including:

9.1) Being made from the similar raw material, material with the same manufacturing methods;

9.2) With the same function, purpose of use;

9.3) With similar product quality;

9.4) May be interchangeable in commercial transactions, i.e. the buyer accepts the replacement of this goods for others;

9.5) Being produced in the same country, by the same manufacturer or other manufacturers that are authorized, imported into Vietnam.

The imported goods shall not be considered as similar if in the process of producing one of such goods, producers used technical design, construction design, art design, implementation plan, the design drawings, diagrams, scheme or similar products and services which are made in Vietnam provided free to the sellers by buyers or buyers reduce price to the seller.

10) Identical exported goods: mean exported goods which are identical in all respects, including:

10.1) Physical characteristics such as product surface, component materials, manufacturing methods, function, purpose to use and mechanical, physical, chemical nature...;

10.2) Products quality;

10.3) Reputation of brands;

10.4) Being made in Vietnam, by the same producer or authorized producer.

11) Similar exported goods: means the goods, though not identical in all aspects, but they have the same basic characteristics, including:

11.1) Being made from the similar raw material, material with the same manufacturing methods;

11.2) With the same function, purpose of use;

11.3) With similar product quality;

11.4) May be interchangeable in commercial transactions, i.e. the buyer accepts the replacement of this goods for others;

11.5) Being made in Vietnam, by the same manufacturer or other authorized manufacturers.

12) Imported goods with the same class or category: mean the goods which are in the same group or a set of groups of goods produced by the same industry or the specific field, including identical imported goods and similar imported goods.

For example, category of construction steel such as rolled smooth steel, twisted steel, form steel (U, I, V ...) produced by the steel production industry, is goods with the same category.

12.1) In the method of determining the taxable value under the deductible value "imported goods with the same class or category" are the goods imported from all countries into Vietnam, regardless of origin.

12.2) In the method of determining the taxable value under the calculated value "imported goods with the same class or category" must be the imported goods having the same origin with the goods which are being determined taxable value.

13) First entry gate: means the destination port indicated in Bill of Lading. For transport by road traffic, railway or river, the first entry gate is the port of destination stated in the contract.

14) Software: means data, program or instruction which is expressed under the form of commands, codes, schemes or any other form which, when transmitted into a data processing device enabling such device to perform a task or achieve a specific outcome. Products of audio, video or images are not considered as software according to provisions.

15) Intermediaries: are understood as the floppy disk, CD, tape, mag-card or any object which may store information, are used as a means of temporary storage or to transfer software. Enabling the software to be used, it must be delivered, installed or integrated into data processing devices. Intermediaries herein do not include integrated circuits, IC, semiconductors and similar devices or components mounted on circuit boards or such devices.

16) Assumed price: means the price rate determined when not yet had the goods sale and purchase activities to import goods into Vietnam.

17) Imposed price: means the price rate determined not in compliance with the principles and methods of determining the taxable value guided in this Circular.

Article 3. Principles for determining customs value 

1) Customs value for purposes of calculating tax (hereinafter referred to as taxable value) is determined according to the principles guided in Chapter II this Circular.

2) Customs value for statistical purposes (hereinafter referred to as the statistical value) is determined according to the following principles:

2.1) For goods which are subject to tax, the statistical value is the taxable value.

2.2) For goods which are not subject to tax, goods exempted from tax, reviewed for tax exemption, the statistical value is the value declared by the customs declarants upon the following principles:

2.2.1) For imported goods, being the selling price at the first entry gate (CIF, DAF price);

2.2.2) For exported goods, being the actual selling price at the exit gate (FOB, DAF price).

Article 4. Time of determining customs value and time of paying tax

1) Time of determining the customs value for exported or imported goods is the date of registration of customs declarations of exported or imported goods.

For the case of delaying the determination of taxable value, time of determining the taxable value for exported or imported goods is the date that customs agencies or customs declarants determining taxable value according to guidance in this Circular

2) Time of paying tax:

2.1) For the difference between the amount of tax imposed by the customs agencies and the amount of tax declared, calculated by taxpayers in case the customs clearance of goods has been made is 10 (ten) days from the date the Customs agency issues the decision to impose tax;

2.2) For other cases, time of paying tax is implemented according to provisions in clause 3, 4 and 5 Article 42 of the Law on Tax Management.

Article 5. Rights of customs declarants 

1) Being entitled to request the customs agencies:

1.1) To keep confidential commercial information provided to customs agencies, including the kinds of information of the buyers, sellers and consignees, the domestic purchaser, export prices, import prices, prices for reselling domestic goods, the production cost of imported goods;

1.2) To instruct the determination, declare the taxable value according to the order, principles and methods of determining value;

1.3) To notify in writing on the taxable value, the basis and methods used to determine the taxable value in the case of taxable value determined by the customs agencies;

1.4) To consult for explanation and clarify the doubtful question of the customs agencies on the declared value;

1.5) To conduct customs clearance in case of exported goods without official price at the time of registering declaration; or imported goods that must delay the determination of taxable value, on the basis of the assurance of payable tax has been made.

2) To request in writing for the change of order to apply the deductible value method and the calculated value method.

3) To complaint or proceed against the determination of the taxable value of the customs agencies in accordance with the law regulations on complaints and denunciations and the law on procedures for settlement of administrative cases.

4) Other rights according to regulations of the Law on Tax Management.

Article 6. Obligations of customs declarants 

1) To declare fully and accurately the costs related to goods purchase and sale for export, import and self-determine the taxable value of exported and imported goods under the provisions.

2) To submit taxable value declaration, documents, legal vouchers used to determine the taxable value with the customs declaration. To submit, present the documents for use as a basis for inspection and determination of the taxable value as the request of the customs authorities.

3) To join the explanation and submit to the inspection of customs agencies on the declared value. To bear responsibility for coordination with customs agencies in clarifying the doubtful question of customs agencies for the declared contents related to the taxable value.

4) To take responsibility before the law for the declared contents and results of self-determination of customs value aiming to calculate tax and customs Statistics.

5) To take responsibility for consultations invitation (Upon Form No.3 issued together with this Circular) sent by the customs agency according to the correct address declared in the customs declaration or the address registered with the customs agency but having no recipient.

6) To implement the assurance at the request of the customs agency stipulated in Article 25 of this Circular if wishing goods to be conducted customs clearance.

7) Other obligations according to regulations of the Law on Tax Management.

Article 7. Responsibilities of customs agencies 

1) To keep confidential commercial information provided by the customs declarants related to declared value, including the kinds of information of the buyers, sellers and consignees, the domestic purchaser, export prices, import prices, prices for reselling domestic goods, the production cost of imported goods, except for the cases of being forced to supply to the relative agencies in accordance with law regulations.

2) To explain, guide the customs declarants to comply with the provisions of the Decree No.40/2007/ND-CP dated 16/3/2007 of the Government and guidance in this Circular.

3) To notify in writing to the customs declarants on:

3.1) Basis,  doubtful grounds in case of having doubt on the declared price rate for the items to be of the risk management List of imported goods on prices of General Department level or the risk management List of imported goods on prices of Department level (upon Form No.1 attached herewith);

3.2) Assurance rate in case of delaying or determining taxable value (upon Form No.2 attached herewith);

3.3) Taxable value, the basis and methods used to determine the taxable value in case of taxable value determined by the customs agencies (upon Form No.4 attached herewith);

4) To organize the implementation of consultation in accordance with correct order, procedures as guided in Article 26 of this Circular.

5) To publish the form of taxable value declaration on page of electronic information of Vietnam Customs and guide the customs declarants to declare suitably for each method of determining the taxable value.

6) To resolve complaints from the customs declarants on the determination of taxable value as prescribed by law.

7) Other responsibilities according to regulations of the Law on Tax Management.

Article 8. Powers of customs agencies 

1) To check the contents of the declaration, determination of the taxable value of the customs declarants as guided in Chapter III of this Circular.

2) To require the customs declarants to submit and present documents and vouchers relating to the purchase, sale, payment for goods, documents of transport, insurance (if any) and sales cost-accounting after import to explain, clarify the doubtful question of the customs agencies for the declared value.

3) Determination of taxable value:

3.1) For exported goods: the customs agencies determine taxable value in the following cases:

3.1.1) Customs declarants may not determine the value or determine value not in compliance with principles and methods prescribed in Item I Chapter II of this Circular; do not declare or improperly declare the official price;

3.1.2) Illegal goods sale and purchase contract;

3.1.3) Contents between goods purchase and sale contract and the contents declared on the customs declaration are conflicted;

3.2) For imported goods: the customs agencies determine taxable value in the following cases:

3.2.1) Customs declarants may not determine the taxable value according to methods to determine value;

3.2.2) Failing to declare or declare improperly the must-to-plus amounts provided in this Circular.

3.2.3) The cases that the customs agencies reject the declared value specified in point 1.3.2.2 clause 1 Article 24 and point 4.4.1 clause 4 Article 26 of this Circular.

3.2.4) The cases that goods to be of the risk management list of imported goods on prices of the General Department level or the risk management List of imported goods on prices of the Department level with doubtful question on price rates, and customs declarants agree to pay tax at the price rates determined by the customs agencies under the form No.1 issued attached herewith.

3.2.5) The customs declarants do not comply with provisions in the Decree No.40/2007/ND-CP dated 16/3/2007 of the Government and guidance in the issuance attached herewith.

4) Other powers according to regulations of the Law on Tax Management.

Article 9. Documents, vouchers 

Apart from customs vouchers as prescribed, the vouchers, documents which the customs declarants must hand in to the customs agencies as prescribed in this Circular are certified true copies of enterprises (except for the cases with specific requirement being the original), each type of voucher, document 01 copy. If there are doubtful questions on relevant documents, vouchers, the customs agencies must cross-check with the original to ensure the accuracy.