Circular No. 215/2012/TT-BTC guides the implementation of certain contents regarding the management and handling of confiscated items and means transferred to the state treasury due to administrative violations.

CIRCULAR

Guidelines for implementing certain contents on management,

handling of confiscated assets and means to be transferred to the state treasury

due to administrative violations

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Pursuant to the Ordinance on Handling Administrative Violations 2002 and the Ordinance amending and supplementing certain articles of the Ordinance on Handling Administrative Violations 2008;

Pursuant to Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Ordinance on Handling Administrative Violations 2002 and the Ordinance amending and supplementing certain articles of the Ordinance on Handling Administrative Violations 2008;

Pursuant to Decree No. 60/2003/NĐ-CP dated June 6, 2003, promulgated by the Government detailing and guiding the implementation of the Law on State Budget;

Pursuant to Decree No. 52/2009/NĐ-CP dated June 3, 2009 of the Government detailing and guiding the implementation of certain provisions of the Law on Management and Use of State Assets;

BASED ON Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government on auctioning assets;

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;

At the proposal of the Director of the State Asset Management Department;

The Minister of Finance issues this Circular guiding the implementation of certain contents on management, handling of confiscated assets and means to be transferred to the state treasury due to administrative violations, including: determining the value of temporarily detained administrative violation assets and means; handling certain types of confiscated administrative violation assets and means to be transferred to the state treasury; preserving confiscated administrative violation assets and means to be transferred to the state treasury; setting the initial price for auction; costs for handling confiscated administrative violation assets and means to be transferred to the state treasury and reporting system on the handling of confiscated administrative violation assets and means to be transferred to the state treasury.

Article 1. Scope of Regulation

Article 1. This Circular guides the implementation of certain contents on management, handling of confiscated assets and means to be transferred to the state treasury due to administrative violations, including: determining the value of temporarily detained administrative violation assets and means; handling certain types of confiscated administrative violation assets and means to be transferred to the state treasury; preserving confiscated administrative violation assets and means to be transferred to the state treasury; setting the initial price for auction; costs for handling confiscated administrative violation assets and means to be transferred to the state treasury and reporting system on the handling of confiscated administrative violation assets and means to be transferred to the state treasury.

Article 2. Other contents on management, handling of confiscated administrative violation assets and means to be transferred to the state treasury not guided by this Circular shall be implemented according to relevant laws.

Article 2. Determination of the Value of Temporarily Detained Administrative Violation Assets and Means

Clause 1. After temporarily detaining administrative violation assets and means, the authority with the power to impose penalties shall be responsible for valuing the assets and means in accordance with Clause 2, Article 34 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing the implementation of certain articles of the Ordinance on Handling Administrative Violations 2002 and the Ordinance amending and supplementing certain articles of the Ordinance on Handling Administrative Violations 2008 (hereinafter referred to as Decree No. 128/2008/NĐ-CP) to serve as the basis for determining the fine range, penalty authority for administrative violations and shall bear responsibility for such valuation. In cases where the valuation of detained assets and means is complex, the authority with the power to impose penalties may request the local financial agency to cooperate in determining the value of the administrative violation assets and means in cases applicable under Clause 2, Article 34 of Decree No. 128/2008/NĐ-CP.

Clause 2. In cases where it is not possible to apply the bases prescribed in Clause 2, Article 34 of Decree No. 128/2008/NĐ-CP to value the temporarily detained assets and means, the authority with the power to impose penalties shall establish a Valuation Committee to conduct the valuation.

Clause 3. The composition of the Valuation Committee prescribed in this Clause is as follows:

Point a. For administrative violation assets and means temporarily detained by authorities at central level and provincial level:

- Head of the authority issuing the temporary detention decision - Chairperson;

- Representative from the Department of Finance - Vice-Chairperson;

- Representative from the specialized department of the authority issuing the temporary detention decision - Member;

- Representative from the Asset Auction Service Center when required by law - Member;

- Representative from the technical specialist agency (if necessary) - Member.

Point b. For administrative violation assets and means temporarily detained by authorities at district level and commune level:

- Head of the authority issuing the temporary detention decision - Chairperson;

- Representative from the District Financial Planning Office - Vice-Chairperson;

- Representative from the specialized department of the authority issuing the temporary detention decision (if any) - Member;

- Representative from the technical specialist agency (if necessary) - Member.

Clause 4. The operation principles of the Valuation Committee shall be carried out in accordance with Article 8 of Circular No. 137/2010/TT-BTC dated September 15, 2010 of the Ministry of Finance on the determination of the initial price of state-owned assets for auction and the financial regime of the Auction Asset Committee (hereinafter referred to as Circular No. 137/2010/TT-BTC).

Clause 5. The valuation of assets and means in accordance with this Article must be recorded in a Record in Form No. 01 attached hereto. The unit price and total value of the asset determined in the valuation record shall be used for:

Point a. As the basis for determining the fine range, penalty authority for administrative violations;

Point b. Transferred to agencies, organizations, units managing and using;

Point c. Transferred to the Asset Auction Service Center, District Auction Asset Committee for auction.

Article 3. Handling Certain Types of Contraband Items and Means of Transport Seized and Surrendered to the State Treasury

Within ten days from the date of the decision to seize contraband items and means of transport, the agency issuing the seizure decision (or the agency submitting the proposal for the issuance of the seizure decision to the competent authority) shall take the lead and coordinate with financial agencies and related agencies to handle the contraband items and means of transport according to Clause 2, Article 35 of Decree No. 128/2008/ND-CP. The specific handling of certain types of contraband items and means of transport is as follows:

1. For contraband items that are Vietnamese currency, foreign currency, negotiable instruments, gold, silver, precious metals, and precious stones which have been transferred to the State Treasury by the agency issuing the seizure decision in accordance with point a, Clause 2, Article 35 of Decree No. 128/2008/ND-CP, based on relevant documents and certificates transferred by the agency issuing the seizure decision, the Department of Finance shall take the lead and coordinate with the State Treasury to handle them as follows:

a) For contraband items that are Vietnamese currency, the State Treasury shall deposit them into the state budget in accordance with the laws on the state budget.

b) For contraband items that are foreign currency, the State Treasury shall deposit them into the centralized foreign currency fund (in their original form); at the same time, they shall be converted into Vietnamese currency at the exchange rate published by the State Bank of Vietnam at the time of accounting to record revenue into the state budget in accordance with the laws on the state budget.

c) For contraband items that are gold, silver, precious stones, precious metals (excluding relics, antiques, and national treasures), and negotiable instruments, they shall be transferred to the Center for Auction Services (for contraband items seized by authorities at the central and provincial levels) or the Auction Committee at the district level (for contraband items seized by authorities at the district and commune levels) to organize auctions in accordance with the laws on auctioning assets. The proceeds from the auction, after deducting costs as stipulated in Article 7 of Circular No. 12/2010/TT-BTC dated January 20, 2010, issued by the Ministry of Finance guiding the handling of contraband items that are goods and products prone to damage and managing the proceeds from the handling of contraband items and means of transport seized and surrendered to the state treasury due to administrative violations (hereinafter referred to as Circular No. 12/2010/TT-BTC) and Article 6 of this Circular, shall be deposited into the state budget and recorded under Item 4300 - Revenue from Confiscation, corresponding Sub-item of the current state budget classification.

For gold, silver, precious stones, and precious metals that are relics, antiques, and national treasures, they shall be handled in accordance with point b, Clause 2, Article 35 of Decree No. 128/2008/ND-CP.

2. For contraband items and means of transport that can be transferred to state agencies, organizations, and units for management and use, including transportation vehicles, machinery, equipment, and working tools, after receiving the seizure decision sent by the agency issuing the seizure decision, the Department of Finance shall take the lead and coordinate with the agency issuing the seizure decision to base on usage standards, quotas, and the needs of the agencies, organizations, and units, submit to the competent authority specified in Articles 8, 9, and 10 of the Law on Management and Use of State Assets to decide on transferring the assets to the agencies, organizations, and units for management and use. Based on the transfer decision of the competent authority, the agency issuing the seizure decision shall take the lead and coordinate with the financial agency to hand over the assets to the receiving agencies, organizations, and units in accordance with point c, Clause 2, Article 35 of Decree No. 128/2008/ND-CP.

The organization of asset handover and acceptance, determination of asset value (in cases where the value was not determined during punishment), recording of increased assets, and handling of expenses incurred during the handover process shall be carried out in accordance with Circular No. 43 TC/QLCS dated July 31, 1996, issued by the Ministry of Finance guiding the receipt and handover of assets between administrative and public service agencies and economic organizations according to decisions of the competent authority, and Circular No. 122/2007/TT-BTC dated October 18, 2007, issued by the Ministry of Finance amending and supplementing some contents of Circular No. 43 TC/QLCS.

3. For contraband items and means of transport that have been transferred for auction but were unsold in accordance with point e, Clause 2, Article 35 of Decree No. 128/2008/ND-CP and Clause 1, Article 49 of Decree No. 17/2010/NĐ-CP dated March 4, 2010, of the Government on Auctioning Assets; within ten days from the date of receiving the notification from the Center for Auction Services or the District Auction Committee, the agency issuing the seizure decision shall establish a Liquidation Committee to carry out the liquidation.

a) The members of the Liquidation Committee include:

- The leader of the agency issuing the seizure decision (or the agency submitting the proposal for the issuance of the seizure decision to the competent authority) - Chairman of the Committee;

- A representative of the financial agency at the same level - Vice-Chairman of the Committee;

- A representative of the specialized department of the agency issuing the seizure decision (or the agency submitting the proposal for the issuance of the seizure decision to the competent authority) - Member;

- A representative of the related agency or unit - Member of the Committee.

b) The Liquidation Committee is responsible for classifying contraband items and means of transport that need to be liquidated and implementing one of the following two forms:

- Selling directly to organizations or individuals who wish to purchase;

- Demolishing or destroying contraband items and means of transport that cannot be used further and cannot be sold.

c) Organizing the liquidation of assets:

- For the form of direct sale to organizations or individuals who wish to purchase, it shall be implemented in accordance with Clause 2, Article 29 of Decree No. 52/2009/ND-CP dated June 3, 2009, of the Government detailing and guiding the implementation of some provisions of the Law on Management and Use of State Assets, and the Circular of the Ministry of Finance guiding the implementation of this Decree.

- For the form of demolition and cancellation, it shall be implemented in accordance with the provisions of Article 30 of Decree No. 52/2009/NĐ-CP dated June 3, 2009 of the Government detailing and guiding the implementation of certain articles of the Law on Management and Use of State Property and the Circular of the Ministry of Finance guiding the implementation of this Decree.

d) The costs related to the liquidation of assets include:

- Reasonable and lawful expenses of the Asset Auction Service Center or the District Asset Auction Committee incurred for unsuccessful auctions in accordance with Circular No. 137/2010/TT-BTC but the maximum amount of expenditure shall not exceed the ceiling prescribed in Clause 3, Article 1 of Circular No. 139/2011/TT-BTC dated October 10, 2011 of the Ministry of Finance amending and supplementing Circular No. 12/2010/TT-BTC.

- Costs for the Liquidation Committee to carry out the liquidation of assets in accordance with the guidance provided in Clause 2, Article 6 of this Circular.

Article 4. Preservation of Seized Administrative Violation Items Transferred to the National Treasury

1. The agency that issued the decision to confiscate (or the agency proposing the competent authority to issue the decision to confiscate) shall be responsible for preserving all seized items and means from the date of issuance of the temporary detention or confiscation decision until they are transferred to the receiving agency according to the disposal plan approved by the competent authority.

For seized items and means that must be transferred to the Asset Auction Service Center or the District Asset Auction Committee for auction, based on specific conditions, the preservation of seized items and means shall be carried out as follows:

a) In cases where the agency issuing the confiscation decision or the financial agency has been allocated funds by the competent authority to build warehouses or storage areas for preserving seized items and means, the agency issuing the confiscation decision or the financial agency shall be responsible for preserving seized items and means at their own warehouse or storage area until transferring the asset to the successful bidder or completing the liquidation of seized items and means. The agency responsible for preserving seized items and means shall coordinate with the auction organization to perform related tasks during the asset auction process.

b) In cases where the agency issuing the confiscation decision or the financial agency does not have warehouses or storage areas for preserving seized items and means, the agency or unit assigned the task of selling the auction shall be responsible for receiving and preserving seized items and means until transferring them to the successful bidder.

2. Storage fees, preservation costs of seized items and means, and other related expenses shall be included in the cost of handling seized administrative violation items and means.

3. During the preservation period of confiscated items and means, the agency assigned the task must implement protection and maintenance to prevent deterioration, damage, and loss of seized items and means.

Article 5. Determination of Starting Price for Auction

1. The unit price and value of the items and means to be transferred for auction shall be determined in accordance with the guidance provided in Article 2 of this Circular and shall be used as the starting price for the auction.

2. A Board shall be established to determine or re-determine the starting price in the following cases:

a) When the objects and means of administrative violations have not been valued before being transferred for sale by auction;

b) The time point for organizing the auction exceeds 60 days from the date of determining the value of the administrative violation items and means in the Appraisal Report as stipulated in Article 2 of this Circular;

c) The value of the items and means determined in the Appraisal Report differs (higher or lower) by 10% or more compared to the price of similar items according to the price announcement of the Department of Finance at the time of transfer for auction.

3. The working principles, financial regulations of the Board determining the starting price for auction; principles, methods, and procedures for determining the starting price for auction shall be implemented in accordance with the guidance of the Ministry of Finance in Circular No. 137/2010/TT-BTC.

Article 6. Costs for processing seized administrative violation objects and means to be transferred to the state treasury

The management and use of funds related to the processing of seized administrative violation objects and means to be transferred to the state treasury shall be carried out in accordance with Circular No. 12/2010/TT-BTC, Circular No. 139/2011/TT-BTC, and Circular No. 137/2010/TT-BTC of the Ministry of Finance, and other relevant laws. Some contents are implemented as follows:

1. For the cost of hiring a professional auction organization to appoint an auctioneer to conduct the auction session, including: a maximum allowance of VND 300,000 per auction session for the auctioneer and travel and accommodation expenses according to the travel expense regulations applicable to state agencies and public service units. These costs are reflected in the contract signed between the County Asset Auction Council and the professional auction organization.

2. For the costs of liquidating seized administrative violation objects and means: The Chairman of the Liquidation Council examines and decides on the expenditure based on the financial system of the Asset Auction Council stipulated in Circular No. 137/2010/TT-BTC, including the following costs:

a) Costs for receiving, classifying, and inventorying seized objects and means;

b) Costs for demolishing and destroying seized objects and means;

c) Costs for valuing seized objects and means;

d) Costs for organizing the sale of seized objects and means;

đ) Other costs related to the activities of the Liquidation Council.

Article 7. Reporting System on the Handling of Seized Objects and Means Transferred to the State Treasury Due to Administrative Violations

1. Reporting Responsibilities:

a) Annually, the agency of the person authorized to confiscate administrative violation objects and means (or the agency submitting the confiscation decision to the competent authority) at the county and commune levels shall report the handling situation of confiscated objects and means to be transferred to the state treasury within their jurisdiction to the District Finance-Planning Office before January 15 of the following year;

b) The agency of the person authorized to confiscate administrative violation objects and means (or the agency submitting the confiscation decision to the competent authority) at the central, provincial levels, and the District Finance-Planning Office shall compile the handling situation of confiscated objects and means under their management and send it to the Provincial Department of Finance before January 31 of the following year;

c) The Departments of Finance of centrally-administered cities and provinces shall be responsible for compiling the handling situation of confiscated objects and means to be transferred to the state treasury in their respective areas and send it to the People's Committee of the province and the Ministry of Finance before February 28 of the following year.

For agencies and units that fail to comply with the reporting system within the prescribed time limit, the Department of Finance, the District Finance-Planning Office shall decide within their authority or submit to the competent authority to temporarily suspend the payment of costs for handling seized administrative violation objects and means to be transferred to the state treasury until the report is received in accordance with this Circular.

2. Content of the report:

a) The implementation and guidance on the enforcement of legal documents related to the handling of seized objects and means to be transferred to the state treasury due to administrative violations in the unit and locality;

b) Results of handling objects and means and managing and using the proceeds from the handling of seized administrative violation objects and means to be transferred to the state treasury of the unit and locality in the year (compiled according to Model No. 2a, 2b, 3 attached to this Circular);

c) Evaluation of the coordination among relevant agencies and units during the handling process of objects and means; difficulties and recommendations (if any).

Article 8. Implementation clause

1. This Circular takes effect from January 25, 2013.

2. From the date this Circular takes effect, the provisions regarding the cost of hiring a professional auction organization to appoint an auctioneer to conduct the auction session in Clause 2, Article 14 of Circular No. 137/2010/TT-BTC of the Ministry of Finance on determining the initial price of state assets for auction and the financial system of the Asset Auction Council shall cease to be effective.

3. During the implementation period, if any difficulties arise, agencies, organizations, and units are requested to promptly reflect them to the Ministry of Finance (State Asset Management Department) for coordinated resolution./.