Circular No. 05/2009/TT-BTC guiding certain contents regarding customs procedures, export duties, import duties, and tax administration for exported and imported goods under Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government.

CIRCULAR

Guidelines on certain aspects of customs procedures, export duties, import duties, and tax administration for exported and imported goodspursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Governmentpursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government

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Pursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government on urgent measures to prevent economic decline, maintain economic growth, and ensure social security;

Pursuant to Decree No. 118/2008/NĐ-CP dated November 27, 2008, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

The Ministry of Finance hereby issues guidelines on certain aspects of customs reform; export duties, import duties, and tax administration for exported and imported goods pursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government on urgent measures to prevent economic decline, maintain economic growth, and ensure social security as follows:

Article 1. Scope of Application:

This Circular provides guidelines on certain aspects of customs reform, export duties, import duties, and tax administration for exported and imported goods pursuant to Resolution No. 30/2008/NQ-CP dated December 11, 2008 of the Government on urgent measures to prevent economic decline, maintain economic growth, and ensure social security.

2. Criteria for determining that the consignor complies well with laws on customs:

A consignor who complies well with laws on customs is a person who meets the following conditions:

2.1. Has been engaged in export and import activities for a period of 365 days up to the date of registering the customs declaration for the export or import shipment, which is determined by the customs authority as:

a) Not being penalized for smuggling or illegal transportation of goods across borders;

b) Not being penalized for tax evasion or fraudulent tax practices;

c) Not being penalized for other violations (including incorrect declarations leading to underpayment of taxes due or overpayment of tax exemptions, reductions, or refunds) with fines within the jurisdiction of the Director of the General Customs Department according to the Administrative Violations Handling Decree; or not being penalized more than three times with fines within the jurisdiction of the Director of the Customs Branch.

2.2. Not having overdue tax debts exceeding 90 days from the deadline for tax payment at the time of registering the customs declaration;

2.3. Implementing value-added tax deduction method.

3. Criteria for determining that the taxpayer meets the conditions stipulated in point a, Clause 4, Article 42 of the Tax Administration Law:

A taxpayer who meets the conditions stipulated in point a, Clause 4, Article 42 of the Tax Administration Law is a person who:

a) Complies well with customs laws as stated in point 2;

b) Does not have overdue tax debts or late payment penalties at the time of registering the customs declaration.

4. Criteria for determining that the consignor repeatedly violates laws on customs:

A consignor who repeatedly violates laws on customs is a person who has been engaged in export and import activities for a period of 365 days up to the date of registering the customs declaration for the export or import shipment, and has been penalized twice for fraudulent tax practices, tax evasion, or other violations (including incorrect declarations leading to underpayment of taxes due or overpayment of tax exemptions, reductions, or refunds) with fines within the jurisdiction of the Director of the General Customs Department according to the Administrative Violations Handling Decree.

Exported and imported goods of a consignor who repeatedly violates laws on customs shall be subject to inspection levels prescribed in point b, Clause 2, Article 11 of Decree No. 154/2005/NĐ-CP.

5. Deadline for paying taxes on imported materials and components for direct production of export goods:

5.1. The deadline for paying taxes on imported materials and components for direct production of export goods (including goods listed in the consumer goods catalog published by the Ministry of Industry and Trade but intended for direct production of export goods) for taxpayers who comply well with customs laws and do not have overdue tax debts or late payment penalties at the time of registering the customs declaration is 275 (two hundred seventy-five) days from the date of registering the customs declaration.

5.2. In special cases where the production cycle or material reserve period exceeds 275 days, such as shipbuilding, mechanical product manufacturing, livestock farming, aquaculture, pearl farming; processing seasonal agricultural products, the tax payment deadline may be extended beyond 275 days. The maximum extension period shall not exceed the delivery deadline specified in the export contract for the product produced from imported raw materials or components requesting an extension of the tax payment deadline or the production cycle.

5.3. To apply for an extended tax payment deadline of more than 275 days, in addition to the customs declaration documents, the declarant and taxpayer must submit the following documents to the customs office where the customs declaration is registered:

a) A letter requesting an extension of the tax payment deadline of more than 275 days for each specific case, consistent with the actual situation of material reserves; specifying the reasons, amount of tax requested, proposed extension period, and describing the production process and time: one original copy;

b) Documents proving the extension of the delivery deadline on the export contract if the goods eligible for an extended tax payment deadline of more than 275 days are due to the extension of the delivery deadline on the export contract: one certified copy by the company's director.

5.4. The customs branch where the customs declaration for imported goods is registered will receive, preliminarily review the documents, and handle them as follows:

a) If the documents are complete and meet the criteria, report to the General Customs Department for an official document extending the tax payment deadline beyond 275 days. If the conditions for extending the tax payment deadline beyond 275 days are not met, issue an official notification to the taxpayer.

b) If it is necessary to verify the actual production cycle and material reserves, the local General Customs Department will cooperate with the tax authorities and relevant agencies for verification. The verification must be documented in a record specifying the production cycle of the product from the raw materials or components requesting an extension of the tax payment deadline.

6. Imported raw materials and components for producing export goods that are subject to the tax payment deadline guidance provided in Point 5 of this Circular include:

6.1. Raw materials, semi-finished products, spare parts, and spare part assemblies directly participating in the production process to constitute exported products;

6.2. Raw materials and supplies directly participating in the production process of exported products but not directly transforming into products or not constituting the physical entity of the product;

6.3. Complete products imported by enterprises to be attached to exported products, packed together with exported products produced from imported raw materials or packed together with exported products produced from domestically purchased raw materials to form a complete set for export abroad;

6.4. Supplies used for packaging or packaging materials for packing exported products;

6.5. Raw materials and supplies imported for warranty, repair, and recycling of exported products;

6.6. Sample goods imported for producing export goods after completing contracts that must be re-exported back to foreign customers.

7. Regarding quotas; scrap and waste ratios:

The quota of imported raw materials and supplies considered for tax refund or non-payment of import duties is the actual quota used to produce real exported products, including the scrap and waste ratio obtained during the production process of exported goods from imported raw materials and supplies.

7.1. The scrap and waste ratio included within the consumption quota obtained during the production process of exported goods from imported raw materials and supplies shall not be subject to import duties. In cases where they still have commercial value, if the taxpayer sells or consumes these scraps and wastes on the market, they will also not be subject to import duties but must declare and pay other taxes such as VAT and corporate income tax according to regulations.

7.2. The enterprise director declares and bears full responsibility under the law for the importation, use of imported raw materials and supplies to produce export goods, and the actual quota used to produce products including the scrap and waste ratio obtained during the production process of exported goods when declaring the usage quota of raw materials to customs authorities. If there is no declaration or incorrect declaration, in addition to paying the full amount of tax according to the quantity and import duty rate of the imported raw materials and supplies, the taxpayer will also be subject to administrative penalties according to regulations.

7.3. The usage quota of raw materials established by the enterprise must be notified in writing to the Customs Authority before processing the first export shipment of the product code.

7.4. The establishment and declaration of the quota are carried out in accordance with current guidelines stipulated in Circular No. 112/2005/TT-BTC of the Ministry of Finance guiding customs procedures, inspection, and supervision, and Circular No. 59/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance guiding export tax, import tax, and tax management for exported and imported goods.

7.5. For scrap and waste included in the usage quota, consumption quota, and loss ratio of the processing type meeting the provisions of Article 31 of Decree No. 12/2006/NĐ-CP dated January 23, 2006 of the Government, agreed upon in the processing contract and notified in writing to the Customs Authority according to the guidance in Circular No. 116/2008/TT-BTC dated December 4, 2008 of the Ministry of Finance, shall be treated similarly regarding import duties as scrap and waste of the type importing raw materials and supplies for producing export goods guided at Point 7.1 above.

8. Regarding payment of taxes in sequence:

8.1. The order of tax payment is implemented according to the provisions of Article 45 of the Law on Tax Administration.

8.2. At the time of registering the import declaration, if the taxpayer has overdue tax debts but not exceeding 90 days from the deadline for paying off the tax, they can clear customs with the following conditions:

a) The taxpayer must provide a written commitment to the Customs Authority to pay off the overdue tax debt monthly to the Customs Office where the tax debt remains, with each installment being at least 20% of the total overdue tax debt but not less than 2 billion VND per installment.

b) The amount of tax registered for payment according to the plan must be guaranteed by a financial institution or another organization operating under the Law on Financial Institutions. The guarantee is implemented according to the guidance in Circular No. 59/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance guiding export tax, import tax, and tax management for exported and imported goods.

c) The taxpayer must pay the tax arising from the customs declaration currently undergoing customs procedures before receiving the goods.

8.3. During the period allowed for delayed payment according to the plan registered with the Customs Authority, the tax amount registered for payment according to the plan must still be subject to late payment penalties according to regulations, but the enforcement measures stipulated in Article 93 of the Law on Tax Administration will not be applied temporarily.

8.4. The taxpayer is responsible for paying the full amount of tax and late payment penalties according to the plan committed to. In case of violation of the commitment, the Customs Authority will require the taxpayer to pay the tax according to the procedures stipulated in the Law on Tax Administration.

9. Documentation and procedures for tax refunds:

The documentation and procedures for tax refunds for cases eligible for tax refunds are implemented according to the guidance in Circular No. 59/2007/TT-BTC dated June 14, 2007 of the Ministry of Finance guiding export tax, import tax, and tax management for exported and imported goods. Specifically, the customs declaration for exported and imported goods and bank payment vouchers in the tax refund application dossier are handled as follows:

9.1. Regarding the customs declaration for exported and imported goods: the taxpayer submits one original copy. The Customs Authority where the tax refund and non-payment of tax are processed stamps the original customs declaration submitted by the taxpayer indicating that the goods are eligible for tax refund and non-payment of tax, makes a copy of the original customs declaration after processing, returns the original customs declaration to the taxpayer, and retains a copy of the customs declaration in the tax refund file kept at the unit.

9.2. Regarding bank payment vouchers:

9.2.1. In cases where payment vouchers must be submitted through banks, for tax refund cases subject to post-audit refunds but when submitting the settlement and refund documents, the enterprise has not yet presented the bank payment vouchers, the customs authority shall coordinate with the tax authority responsible for managing the taxpayer to conduct an examination of accounting books, accounting records, warehouse entry/exit forms, inventory cards; if necessary, additional verification and cross-checking of the taxpayer's business transactions with related organizations and individuals shall be carried out.

9.2.2. The examination must be completed within a maximum period of 15 days from the date of receipt of the documents. If the examination confirms that the goods have been re-exported and all relevant documents are in compliance, the settlement and refund shall be processed for the enterprise.

9.2.3. During the waiting period for the examination results, the taxpayer may apply the tax payment deadline for taxpayers meeting the conditions specified in point a, Clause 4, Article 42 of the Tax Administration Law and temporarily refrain from applying coercive measures stipulated in Article 93 of the Tax Administration Law if they meet the following conditions:

a) The taxpayer only owes taxes on imported raw materials and components used to produce exported goods for which settlement and refund documents have been submitted to the customs authority but lacks the bank payment vouchers.

b) The taxpayer provides a written commitment to comply with the final decision of the customs authority.

9.2.4. In cases where the examination, verification, and cross-checking of related business transactions determine that the goods cannot be settled and refunded, and no taxes are collected, the taxpayer will not be eligible for the tax payment deadline for taxpayers meeting the conditions specified in point a, Clause 4, Article 42 of the Tax Administration Law and will be subject to coercive measures as prescribed in Article 93 of the Tax Administration Law.

10. Awards and Disciplinary Actions:

10.1. Individuals and organizations that comply well with customs management regulations shall be rewarded according to the general system of the State.

10.2. Individuals and organizations that unintentionally or intentionally violate customs procedures, customs inspection, and supervision regulations shall be subject to administrative penalties or criminal prosecution depending on the nature and severity of the violation as prescribed by law.

10.3. Customs officials who engage in harassment or causing inconvenience during the execution of customs procedures, inspections, and supervision, affecting export and import activities, shall be subject to disciplinary action or criminal prosecution depending on the nature and severity of the violation; if damage is caused, compensation shall be provided according to the law.

11. Implementation:

11.1. This Circular takes effect 45 days from the date of signature and applies to customs declarations for exported and imported goods registered with the customs authority from January 1, 2009, replacing the relevant provisions in Circular No. 112/2005/TT-BTC dated December 15, 2005, Circular No. 59/2007/TT-BTC of the Ministry of Finance, and other conflicting documents issued by the Ministry of Finance.

11.2. The customs authority responsible for implementing customs procedures, export duties, import duties, and tax administration for exported and imported goods shall act in accordance with current regulations and this Circular. In case of difficulties, detailed reports shall be submitted to the Ministry of Finance (General Department of Customs) for guidance.

11.3. During implementation, if any related documents referred to in this Circular are amended, supplemented, or replaced, they shall be implemented according to the new amended, supplemented, or replaced documents./.