Decree No. 26/2009/ND-CP detailing the implementation of certain provisions of the Special Consumption Tax Law

DECREE

Detailed regulations on the implementation of certain provisions of the Special Consumption Tax Law

_______________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Special Consumption Tax Law dated November 14, 2008;

Pursuant to the Law on Tax Administration dated November 29, 2006;

Considering the proposal of the Minister of Finance,

DECREE:

Chapter 1.

SCOPE AND APPLICABLE OBJECTS

Article 1. Scope of Regulation

This Decree provides detailed guidance for the implementation of certain provisions of the Special Consumption Tax Law.

Article 2. Taxable Objects

1. The objects subject to special consumption tax shall be implemented in accordance with the provisions of Article 2 of the Special Consumption Tax Law.

a) For aircraft and yachts specified in point e, Clause 1, Article 2 of the Special Consumption Tax Law, they are types used for civilian purposes.

b) For various types of gasoline, naphtha, reformate components, and other products used to blend gasoline as stipulated in point g, Clause 1, Article 2 of the Special Consumption Tax Law, this includes condensate.

c) For fireworks specified in point k, Clause 1, Article 2 of the Special Consumption Tax Law, it does not include fireworks that are children's toys, educational supplies, or used for decoration.

d) For gambling business specified in point d, Clause 2, Article 2 of the Special Consumption Tax Law, it includes sports betting, entertainment betting, and other forms of betting as prescribed by law.

2. The objects subject to special consumption tax for goods specified in Clause 1, Article 2 of the Special Consumption Tax Law are complete finished products, excluding spare parts for assembling such goods.

1. For imported goods exempt from special consumption tax as specified in Point a, Clause 2, Article 3 of the Special Consumption Tax Law, including:

The objects exempt from special consumption tax shall be implemented in accordance with the provisions of Article 3 of the Special Consumption Tax Law.

1. For imported goods exempt from special consumption tax as specified in point a, Clause 2, Article 3 of the Special Consumption Tax Law, including:

a) Humanitarian aid goods, non-reimbursable aid goods, including goods imported using non-reimbursable aid funds approved by competent authorities; humanitarian assistance goods, emergency relief goods aimed at mitigating the consequences of war, natural disasters, and epidemics;

b) Gifts from organizations and individuals abroad to state agencies, political organizations, social-political organizations, occupational social-political organizations, social organizations, occupational social organizations, and people's armed forces units;

a) Goods transported from the exporting country to the importing country through Vietnamese ports without undergoing import procedures in Vietnam and without undergoing export procedures out of Vietnam;

2. For transit goods, goods passing through Vietnamese ports and borders, and transshipment goods as specified in point b, Clause 2, Article 3 of the Special Consumption Tax Law, including:

c) Transit goods, goods passing through Vietnamese ports and border gates based on agreements signed between the Government of Vietnam and the Government of another country or between authorized agencies or representatives appointed by both governments;

b) Goods transported from the exporting country to the importing country via Vietnamese ports and stored in bonded warehouses without being processed for import into Vietnam or export out of Vietnam;

c) Transit goods, goods passing through Vietnamese ports and borders based on agreements signed between the Government of Vietnam and foreign governments or authorized agencies or persons representing the Governments of Vietnam and foreign countries;

4. For automobiles specified in Clause 4, Article 3 of the Special Consumption Tax Law, these are types designed by manufacturers for use as ambulances, prisoner transport vehicles, funeral cars; vehicles designed to accommodate both seating and standing passengers up to 24 persons; automobiles running in amusement parks, sports venues without registration and participation in traffic, and specialized vehicles, unregistered and non-participating in traffic vehicles, which are specifically defined by the Ministry of Finance in coordination with relevant ministries and agencies.

3. For aircraft and yachts used for commercial cargo transportation, passenger transportation, and tourism operations.

In cases where aircraft and yachts are not used for commercial cargo transportation, passenger transportation, or tourism operations, they must pay special consumption tax according to the provisions of the Special Consumption Tax Law and guidelines issued by the Ministry of Finance.

4. For vehicles specified in Clause 4, Article 3 of the Special Consumption Tax Law, these are types designed by manufacturers for use as ambulances, prisoner transport vehicles, funeral cars; vehicles designed to accommodate both seating and standing passengers up to 24 or more; motor vehicles operating in amusement parks, recreational areas, and sports venues without registration and participation in traffic circulation.

BASIS FOR TAX CALCULATION

Chapter 2.

BASIS FOR TAXATION

Article 4. Special Consumption Tax Calculation Price

The special consumption tax calculation price for goods and services subject to special consumption tax shall be implemented according to the provisions of Article 6 of the Special Consumption Tax Law.

1. For domestically produced goods, the special consumption tax calculation price shall be determined as follows:

a) In cases where the production establishment or import establishment subject to special consumption tax sells goods through subordinate establishments that are dependent accounting units, the price serving as the basis for calculating the special consumption tax is the selling price of the dependent accounting unit. If the production establishment or import establishment sells goods through agents at the prices set by the production establishment or import establishment and only receives commission, the selling price serving as the basis for determining the special consumption tax base price is the price set by the production establishment or import establishment before deducting the commission.

a) In the case where the production facility subject to special consumption tax sells goods through affiliated establishments under dependent accounting, the tax calculation price is the selling price of the affiliated establishment under dependent accounting. If the production facility sells through agents at the price set by the facility and only receives commission, the tax calculation price is the selling price set by the production facility before deducting the commission.

b) In the case where the production facility subject to special consumption tax sells goods through commercial trading establishments, the tax calculation price is the selling price of the production facility but it must not be lower than 10% compared to the average selling price of the commercial trading establishment.

If the selling price of the production facility is lower than 10% compared to the selling price of the commercial trading establishment, the special consumption tax calculation price is the price determined by the tax authority.

2. For imported goods, the special consumption tax calculation price shall be determined as follows:

Taxable price for special consumption tax = Import tax value + Import tax.

The import tax calculation price shall be determined according to the provisions of the laws on export tax and import tax. In cases where imported goods are exempted or reduced from import tax, the tax calculation price does not include the amount of import tax that is exempted or reduced.

3. For goods subject to special consumption tax, the taxable price does not exclude the value of packaging.

For bottled beer, if there is a deposit on the bottle, quarterly, the production facility and the customer settle the deposit amount corresponding to the value of unrecovered bottles, which must be included in the revenue for calculating the special consumption tax.

4. For processed goods subject to special consumption tax, the special consumption tax base value is the selling price of the goods sold by the processing entity or the selling price of similar or equivalent goods at the time of sale.

5. For goods produced under joint business operations between the production facility and the brand owner (trademark) of the goods and production technology, the selling price for calculating the special consumption tax is the selling price of the brand owner of the goods and production technology.

6. For goods sold on credit or deferred payment terms, the special consumption tax calculation price is the selling price of the goods when paid in full, excluding the interest on credit or deferred payments.

7. For services, the taxable price for special consumption tax is the service supply price of the service business.

a) For golf business, the special consumption tax calculation price is the selling price of membership cards, golf play tickets, including green fees and deposits (if any). In cases where other goods or services not subject to special consumption tax are sold, those goods or services are not subject to special consumption tax.

b) For casino and electronic games with prizes, the special consumption tax calculation price is the revenue from casino and electronic game operations minus the prize payouts to customers.

c) For betting business, the special consumption tax calculation price is the revenue from ticket sales after deducting prize payouts.

d) For nightclub, massage, and karaoke business, the special consumption tax calculation price includes the revenue from activities in nightclubs, massage facilities, and karaoke venues, including food service revenue and other accompanying services.

đ) For lottery businesses, the taxable price for special consumption tax is the revenue from selling lottery tickets permitted by law.

8. For goods and services used for exchange, internal consumption, gifts, donations, promotions, the special consumption tax calculation price is the tax calculation price of similar or equivalent goods and services at the time of such activities.

9. The special consumption tax calculation price for goods and services specified in this Article includes additional income calculated outside the selling price of goods or service provision price (if any), which the production or trading entity enjoys.

a) The tax calculation price is in Vietnamese Dong. In cases where taxpayers have revenues in foreign currency, they must convert the foreign currency to Vietnamese Dong based on the average inter-bank foreign exchange rate published by the State Bank of Vietnam at the time of revenue generation to determine the tax calculation price.

b) The revenue generation time for goods is the time of transferring ownership or usage rights to the buyer, regardless of whether payment has been received or not; for services, it is the completion time of service provision or the issuance time of the service invoice, regardless of whether payment has been received or not.

Article 5. Tax Rate

The special consumption tax rate is implemented according to the Special Consumption Tax Table provided for in Article 7 of the Special Consumption Tax Law.

1. For passenger-cargo vehicles designed to carry both passengers and cargo as specified in points 4d and 4g of the Special Consumption Tax Table, these are vehicles with two or more rows of seats and a fixed partition between the passenger compartment and the cargo area.

2. Gasoline-electric hybrid vehicles or electric vehicles as specified in point 4đ of the Special Consumption Tax Table are vehicles designed according to manufacturer standards with gasoline blended up to 70% of total fuel used, and gasoline-electric hybrid vehicles with gasoline usage up to 70% of energy used compared to the most fuel-efficient gasoline vehicle of the same seating capacity and engine displacement available in the Vietnamese market.

3. Biofuel or electric vehicles as specified in points 4e and 4g of the Special Consumption Tax Table are vehicles designed according to manufacturer standards running entirely on biofuel or electricity.

Chapter 3.

REFUND OF TAX, DEDUCTION OF SPECIAL CONSUMPTION TAX

Article 6. Refund of Tax

The refund of special consumption tax is implemented according to the provisions of Article 8 of the Special Consumption Tax Law.

1. For temporarily imported goods for re-export as specified in point a, Clause 1, Article 8 of the Special Consumption Tax Law, including:

a) Goods imported and subject to special consumption tax but still stored at customs warehouses and under the supervision of customs authorities, which are re-exported abroad;

b) Imported goods that have paid special consumption tax for delivery or sale to foreign entities through agents in Vietnam; imported goods for sale to foreign carriers on routes passing through Vietnamese ports or Vietnamese carriers on international transport routes as prescribed by law.

c) Temporarily imported goods for re-export under the temporary importation and re-export trade method, where upon re-export, the corresponding amount of special consumption tax paid will be refunded based on the actual quantity of goods re-exported;

d) Goods that have paid special consumption tax but are re-exported abroad shall be refunded the amount of special consumption tax paid for the goods returned to the foreign country.

đ) Goods temporarily imported for trade fairs, exhibitions, product demonstrations, or other work within a specified period as provided by law and have paid special consumption tax, when re-exported shall be refunded the tax.

In cases where goods are temporarily imported for re-export, if they are actually re-exported within the time limit for paying taxes as stipulated by laws on export tax and import tax, then there is no need to pay special consumption tax corresponding to the actual quantity of goods re-exported.

2. Raw materials imported for production and processing of exported goods shall be refunded the corresponding amount of special consumption tax paid based on the actual quantity of raw materials used to produce the goods that are actually exported.

3. The procedures, documents, sequence, and authority for handling refunds of special consumption tax for imported goods under the cases prescribed in Clause 1 and 2 of this Article shall be implemented according to the regulations applicable to the handling of import tax refunds under the laws on export tax and import tax.

4. Production and business establishments settling tax upon merger, division, separation, dissolution, bankruptcy, change in ownership form, transfer, sale, lease, or state enterprise contracting with excess special consumption tax paid.

5. The refund of tax as prescribed in Point d Clause 1 of Article 8 of the Special Consumption Tax Law includes:

a) Refund of tax pursuant to the decision of the competent authority as prescribed by law;

b) Refund of tax pursuant to international treaties to which the Socialist Republic of Vietnam is a member;

c) Refund of tax in cases where the amount of special consumption tax paid exceeds the amount of special consumption tax due as prescribed by law.

Article 7. Deduction of Tax

1. The taxpayer producing taxable goods using raw materials subject to special consumption tax may deduct the special consumption tax already paid on the raw materials when determining the special consumption tax payable at the production stage. The deductible special consumption tax corresponds to the special consumption tax of the raw materials used to produce the goods sold.

2. The deduction of special consumption tax shall be carried out when declaring payment of special consumption tax.

Chapter 4.

IMPLEMENTATION

Article 8. Effective Date

1. This Decree takes effect from April 1, 2009; the provisions on special consumption tax in this Decree apply to alcoholic beverages from January 1, 2010.

2. This Decree replaces Decree No. 149/2003/NĐ-CP dated December 4, 2003, and Article 1 of Decree No. 156/2005/NĐ-CP dated December 15, 2005, of the Government, except for the provisions on special consumption tax for alcoholic beverages which continue to be implemented until December 31, 2009.

Article 9. Guidance on Implementation.

1. The Ministry of Finance shall provide guidance on the implementation of this Decree.

2. The Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities shall be responsible for implementing this Decree.