Circular No. 63/2011/TT-BTC provides for the pilot application of preferential treatment regimes in customs administration for enterprises meeting the required conditions.

CIRCULAR

Provisions on the pilot application of preferential regimes in the field of state administration

concerning customs for enterprises meeting the required conditions

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Pursuant to the Customs Law No. 29/2001/QH10 dated June 29, 2001 and the Law No. 42/2005/QH11 dated June 14, 2005 amending and supplementing certain articles of the Customs Law;

Pursuant to the Law on Tax Administration No. 78/2006/QH10 dated November 29, 2006;

Pursuant to the Government Decree No. 154/2005/NĐ-CP dated December 15, 2005 detailing certain provisions of the Customs Law on customs procedures, inspection, and supervision;

Pursuant to the Government Decree No. 85/2007/NĐ-CP dated May 25, 2007 detailing certain provisions of the Law on Tax Administration, and the Government Decree No. 106/2010/NĐ-CP dated October 28, 2010 amending and supplementing certain provisions of the Government Decree No. 85/2007/NĐ-CP dated May 25, 2007;

Pursuant to the 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;

Implementing the directive of the Prime Minister in Circular No. 698/VPCP-KTTH dated January 30, 2011 of the Government Office regarding the issuance of preferential customs procedures;

The Ministry of Finance stipulates specifically the pilot application of preferential regimes in the field of state administration concerning customs for enterprises meeting the required conditions as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Application

1. Pilot application of preferential regimes in state administration concerning customs for some enterprises that meet the conditions specified in this Circular.

2. In addition to the preferences enjoyed according to the provisions of this Circular, enterprises also enjoy other preferences in the field of state administration concerning customs for export and import goods as provided by law.

3. Enterprises applying the preferential regime in the field of state administration concerning customs (hereinafter referred to as preferred enterprises) shall enjoy the preferential regime prescribed in this Circular at all customs units nationwide, both during the process of customs clearance procedures and post-clearance inspection stages.

4. When recognized as a preferred enterprise, all exported and imported goods and services (except imported goods of enterprises specified in Clause 2, Article 3 of this Circular), and domestic transactions of the enterprise shall enjoy the preferential regime.

Article 2. Duration of Pilot Implementation

The duration of the pilot implementation of the preferential regime is two years from the date this Circular takes effect. Upon expiration of the pilot period, the General Department of Customs will summarize and evaluate the implementation, report to the Ministry of Finance for submission to the Prime Minister to issue a stable and long-term implementation regime.

Chapter II

CONDITIONS FOR PREFERENTIAL ENTERPRISES

Article 3. Types of Preferred Enterprises

Preferential enterprises include three types:

1. Enterprises enjoying preferences in exporting and importing all types of goods and forms of export and import (including both export and import goods and services purchased and sold domestically).

2. Enterprises enjoying preferences in exporting seafood, agricultural products, and crude oil of purely Vietnamese origin.

3. Enterprises enjoying preferences in importing goods for production and export of products in high-tech fields encouraged by the State with special requirements for production processes and product management.

Article 4. Conditions for Preferred Enterprises

Preferred enterprises must be enterprises with the lowest risk level, meeting all the following conditions:

1. Having a history of compliance with customs laws, tax laws, trade laws, investment laws, business laws, or having committed minor violations only subject to administrative penalties as specifically provided in Article 5 of this Circular; customs authorities have confidence in the future compliance of the enterprise as specifically provided in Article 6 of this Circular.

2. Meeting the turnover in exports and imports as specifically provided in Article 7 of this Circular.

3. Maintaining transparent accounting systems as specifically provided in Article 8 of this Circular.

4. Operating effectively.

5. Conducting all export and import transactions through banks.

6. Implementing electronic customs procedures.

7. Voluntarily requesting recognition as a preferred enterprise according to the specific provisions in Article 9 of this Circular.

Article 5. Conditions regarding the process of law compliance of enterprises

1. An enterprise with a process of law compliance is an enterprise that has not been subject to administrative penalties for violations of laws by customs authorities and other state management agencies as stipulated in Clause 3 of this Article; or, within the period specified in Clause 2 of this Article, has been subject to administrative penalties in the form of fines not exceeding three times, each fine not exceeding twenty million dong, without additional penalties (such as revocation of licenses or certificates; confiscation of contraband goods or means of transportation; forced destruction or removal of goods from Vietnam; forced repayment of the value of confiscated contraband goods).

2. The period for evaluating the process of law compliance of an enterprise is thirty-six months prior to the date on which the General Department of Customs receives the enterprise's request to be recognized as a priority enterprise.

For enterprises specified in Clauses 2 and 3 of Article 3, if their operating time is less than thirty-six months (but not less than twelve months), and they meet the requirements set out in Article 4 and Clause 1 of this Article, they shall also be considered for recognition as priority enterprises.

3. Authorities with the power to confirm the compliance with laws of enterprises:

3.1. The authority confirming compliance with customs laws (including compliance with tax laws for imported and exported goods) is the General Department of Customs.

3.2. Other competent authorities confirming the compliance with laws of enterprises upon the request of the General Department of Customs include:

- The authority confirming compliance with domestic tax laws and business efficiency is the Tax Revenue Office where the enterprise registers and fulfills its domestic tax obligations.

- The authority confirming compliance with business laws is the Department of Planning and Investment of the province or city where the enterprise has its headquarters or production facilities, or the Management Board of industrial zones or economic zones where the enterprise has its headquarters or production facilities.

- The authority confirming compliance with trade laws is the Market Surveillance Office of the province or city where the enterprise has its headquarters and production and business facilities. In cases where the enterprise has headquarters and production and business facilities in multiple provinces or cities, confirmation must be obtained from the Market Surveillance Offices in all such provinces or cities.

Article 6. Conditions regarding reliability

1. Customs authorities can trust in the future compliance with laws of the enterprise.

2. For enterprises meeting the conditions specified in Articles 4 and 5 of this Circular, but for which customs authorities do not have sufficient grounds to trust in their future compliance with laws, they shall not be included in the pilot application scope.

Article 7. Conditions regarding export and import turnover

1. For enterprises specified in Clause 1, Article 3 of this Circular: Export and import turnover must reach at least five hundred million US dollars per year.

2. For enterprises specified in Clause 2, Article 3 of this Circular: Export turnover must reach at least one hundred million US dollars per year.

3. For enterprises specified in Clause 3, Article 3 of this Circular: The General Department of Customs shall determine specific export and import turnover in accordance with the characteristics of production technology and management for each type of product.

Article 8. Conditions for transparent accounting system

An enterprise implementing a transparent accounting system is an enterprise confirmed and evaluated by the tax management agency where the enterprise registers and pays domestic taxes as follows:

1. Applying Vietnamese accounting standards.

2. Having internal financial control systems.

3. Having complete and clear accounting books and vouchers.

4. Providing comprehensive, accurate, and truthful financial reports.

5. Scientifically storing all accounting books, vouchers, and documents related to imported and exported goods.

6. Properly implementing financial and accounting regulations.

Article 9. Voluntary Application for Recognition as a Priority Enterprise

Enterprises wishing to apply preferential regimes must submit a written request to the General Department of Customs to recognize them as preferred enterprises and commit to complying with legal provisions.

Chapter III

PROCEDURE FOR RECOGNITION OF PREFERRED ENTERPRISES

Article 10. Notification procedure for applying preferential regime

Based on collecting and analyzing information about enterprises, the General Department of Customs will issue a notification letter to each specific enterprise regarding the policy and regulations stipulated in this Circular so that enterprises can compare, self-assess their conditions, and decide whether to apply.

Article 11. Documents for requesting recognition as a preferred enterprise

The documents for requesting recognition as a preferred enterprise include:

1. Request letter: 01 original copy (according to Model 01/DNUT issued together with this Circular).

2. Self-certifying documents and vouchers proving compliance with the conditions stipulated in this Circular, including:

2.1. Report on export and import statistics of the enterprise over the last three years: 01 original copy (according to Model 02/DNUT issued together with this Circular).

The reporting period covers the entire year, from January 1 to December 31. For the current year, if it has been less than six months, data from the previous three years should be used; if more than six months have passed, actual data up to the present and projected annual figures should be provided.

2.2. Financial reports complying with laws over the last three years (if there were violations, specify the number of times, actions, penalties, levels of penalty, and compliance status): Submit 01 original copy.

2.4. Most recent audit or inspection report (no older than one year, if available): Submit 01 certified copy, present the original.

Article 12. Evaluation of Conditions for Priority Enterprises

1. Appraisal authority: General Department of Customs.

2. Appraisal method:

2.1. Conduct post-clearance inspections at the enterprise's headquarters according to legal regulations to assess the enterprise's compliance with laws; or review the most recent audit or inspection conclusions (as mentioned in Point 2.4, Clause 2, Article 11 of this Circular), if sufficient to evaluate the enterprise's compliance with laws, then use those conclusions instead of conducting post-clearance inspections at the enterprise.

2.2. The General Department of Customs sends letters to the agencies mentioned in Clause 3, Article 5 to comment and evaluate the enterprise's compliance with laws within their respective areas of state management. The evaluation period shall be carried out according to the provisions of Clause 2, Article 5 of this Circular. Within ten working days from receiving the General Department of Customs' request, these state management agencies must respond in writing to the General Department of Customs.

3. Contents of the review:

3.1. Based on the enterprise's application documents for recognition as a preferred enterprise; comments and evaluations from state management agencies as stipulated in Clause 3, Article 5 of this Circular; results of post-clearance inspections or audit/inspection conclusions and other collected information, compared with the conditions for preferred enterprises specified from Article 3 to Article 9, Chapter II of this Circular, the General Department of Customs will assess the enterprise's conditions. If the conditions are met, notify the enterprise to proceed with detailed discussions on the memorandum for the examination and recognition of preferred enterprises (according to Model 03/DNUT issued together with this Circular).

3.2. Inspect (including cases accepting audit/inspection results) the enterprise's technical infrastructure for information technology applications to meet the requirements for electronic data exchange between the enterprise and customs authorities.

4. Content of the memorandum: In addition to other contents depending on the characteristics and operational situation of each enterprise, the memorandum must include the following main contents:

- Name, address, telephone, fax, email of the enterprise;

- Preferences granted to the enterprise;

- Responsibilities of the enterprise;

- Responsibilities of the General Department of Customs;

- Agreement on determining commodity codes for goods exported and imported by the enterprise. The agreed commodity codes serve as the basis for the enterprise to declare customs when handling import and export procedures. If discrepancies are found later, the General Department of Customs will report to the Ministry of Finance for adjustment applicable to subsequent shipments after the adjustment date;

- Suspension of preferential regime application;

- Commitment to implementation.

5. The appraisal period does not exceed 45 days from the date the General Department of Customs receives the application documents from the enterprise. If the enterprise is not recognized as a preferred enterprise, the General Department of Customs will notify the enterprise in writing.

Article 13. Decision to Recognize Priority Enterprises

1. The person deciding to recognize priority enterprises is the Director General of the General Department of Customs.

2. The time limit for issuing the decision to recognize priority enterprises shall not exceed fifteen working days from the date of completing the review process.

3. The model Decision to Recognize Priority Enterprises issued together with this Circular (model 04/DNUT).

Article 14. Re-evaluation and Extension

1. The initial period during which an enterprise enjoys preferential treatment is twelve months, starting from the date on which the General Department of Customs signs the Decision to Apply Preferential Treatment for the enterprise. After this period, the General Department of Customs will conduct a re-evaluation; if the enterprise still meets the prescribed conditions, it will continue to be eligible for an extension of preferential treatment application.

2. Key contents to be considered and evaluated include: the situation regarding compliance with the conditions for priority enterprises and the performance of responsibilities by each party. If deemed necessary, the General Department of Customs may organize consultations with relevant state management agencies as stipulated in Clause 3, Article 5 of this Circular.

3. If the re-evaluation results show that the enterprise continues to meet the prescribed conditions and expresses a desire to continue applying preferential treatment, the General Department of Customs will issue a decision to extend the application of preferential treatment for the enterprise for the subsequent thirty-six (thirty-six) month period according to model 05/DNUT issued together with this Circular.

4. Subsequent re-evaluations will be conducted every thirty-six months, with both parties organizing the re-evaluation of implementation. The content of the re-evaluation and handling of the evaluation results will follow Clauses 2 and 3 of this Article.

5. If the enterprise no longer meets the conditions for priority enterprises, the General Department of Customs will issue a decision to suspend the application of preferential treatment.

Article 15. Customs Authority Managing Priority Enterprises

1. To facilitate priority enterprises and avoid different perceptions leading to varied applications, the unified authority managing priority enterprises is the General Department of Customs (Post-Clearance Control Department).

2. To ensure comprehensive and accurate assessments of enterprises, the General Department of Customs requests local customs authorities to provide information, comments, and evaluations on the enterprise's compliance with laws and its import-export activities.

3. Other agencies under or affiliated with the General Department of Customs, having information or proposals related to the enforcement of laws, clearance of goods, post-clearance inspections, audits, and handling of violations concerning imported/exported goods and domestic purchases of priority enterprises, shall report to the General Department of Customs for consideration and decision.

Chapter IV

PREFERENTIAL TREATMENT FOR ENTERPRISES MEETING THE REQUIREMENTS

Article 16. Preferences During Clearance

Preferences during clearance include: Exemption from detailed inspection of customs documents, exemption from physical inspection of goods (except in cases of clear violation indications):

1. Exemption from detailed inspection of customs documents (including paper and electronic documents) means that the customs authority only accepts the documents, checks their completeness, legality, and validity (in form), without conducting detailed content inspections. The enterprise bears full responsibility before the law and the customs authority for the legality, validity, and content of the documents.

2. Exemption from physical inspection of goods includes exemption from manual inspection and machine inspection.

Article 17. Priorities in the Post-Customs Clearance Period

During the period when enterprises are subject to preferential treatment, customs authorities shall not conduct post-clearance inspections at the enterprise's premises (except in cases where there are clear signs of violations and for inspections aimed at assessing the enterprise's compliance with the law as stipulated by law).

1. Not conducting post-clearance inspections at the enterprise's premises means that the customs authority does not issue a decision and does not establish an inspection team to inspect at the enterprise's premises. In cases where the customs authority informs the enterprise of errors or issues requiring clarification, the enterprise is responsible for rechecking and explaining to the customs authority. The form of explanation and location of explanation are regulated under Article 145 of Circular No. 194/2010/TT-BTC dated December 6, 2010, issued by the Ministry of Finance.

2. Planned inspections to assess the enterprise's compliance with the law: Inspection intervals must be at least five years.

Article 18. Implementation of Electronic Customs Procedures

1. When implementing electronic customs procedures, electronic documents are exempt from inspection and receive feedback 24 hours a day, 7 days a week.

2. In cases of valid reasons, goods of priority enterprises can be cleared through simplified documentation including: Customs declaration form, commercial invoice, and export/import permit (if applicable). Other documents must be submitted by the enterprise within 30 days as stipulated in Article 9 of Decree No. 154/2005/NĐ-CP dated December 15, 2005, issued by the Government.

3. The electronic customs declaration of priority enterprises is recognized by the customs declaration registration system to automatically apply preferential treatment.

Article 19. Priority in Payment of Duties and Fees

1. Enterprises (if they so desire) may pay customs fees and charges on a monthly basis, on a specific date registered with the General Department of Customs.

2. Enterprises (if they so desire) may pay taxes to the customs authority on a monthly basis, on a specific date proposed by the enterprise for exported and imported goods still within the tax deferment period as prescribed by law.

3. Payment of taxes and fees through banks shall be carried out in accordance with Article 3 of Decree No. 87/2010/NĐ-CP dated August 13, 2010, issued by the Government.

Article 20. Application of Pre-refund, Advance Payment, and Post-inspection Regime

1. Pre-refund and post-inspection regime shall be implemented in accordance with Article 60 of the Law on Tax Administration; Article 30 of Decree No. 85/2007/NĐ-CP dated May 25, 2007, issued by the Government detailing certain provisions of the Law on Tax Administration; Clause 21, Article 1 of Decree No. 106/2010/NĐ-CP dated October 28, 2010, issued by the Government amending and supplementing certain provisions of Decree No. 85/2007/NĐ-CP.

2. Priority enterprises are entitled to apply the advance payment and post-inspection regime for imported and exported goods under the processing and export zones regime as stipulated in Clause 1 of this Article.

Article 21. Amendment of Declarations and Supplemental Filing of Customs Documents

Amendments to declarations and supplemental filing of customs documents shall be carried out in accordance with Article 12 of Circular No. 194/2010/TT-BTC dated December 6, 2010, issued by the Ministry of Finance.

Article 22. Single Declaration

1. The single declaration and the deadline for settling the single declaration shall be implemented in accordance with the provisions of Article 9 of Decree No. 154/2005/NĐ-CP dated December 15, 2005 of the Government.

2. Enterprises with preferential status may declare customs in two forms:

- For export and import goods through border gates and customs checkpoints, the declaration shall be made before the export or import of goods.

- For imported goods at place of consumption; raw materials, spare parts, components for production purchased from bonded warehouses shall be imported first (under customs supervision and recorded in the bonded warehouse's logbook), followed by the declaration.

Chapter V

RESPONSIBILITIES OF CUSTOMS AUTHORITIES AND ENTERPRISES

Article 23. Responsibilities of Customs Authorities

1. Customs authorities shall give enterprises priority in applying the preferential regimes stipulated from Article 16 to Article 22 of Chapter IV of this Circular, except in cases where the enterprise is found to have committed any of the following violations:

1.1. Exporting or importing goods listed in the prohibited export and import list under the law.

1.2. There is evidence to confirm that the enterprise has declared incorrectly the name of goods, commodity code, quantity, weight, value, origin... leading to incorrect tax declaration (reducing the amount of tax payable, increasing the amount of tax refund, causing or increasing the amount of tax exemption) of VND 50 million or more, then the decision to temporarily suspend the application of the preferential regime for the enterprise shall be made. After reviewing and handling the violation, if the enterprise is penalized to the extent that it no longer meets the conditions for compliance with customs laws, the decision to suspend the application of the preferential regime for the enterprise and revoke the Decision recognizing the enterprise as a preferred enterprise shall be made, and simultaneously notify relevant agencies as stipulated in Clause 3 of Article 5 of this Circular.

- The competent authority deciding to suspend or temporarily suspend the application of the preferential regime for the enterprise is the General Department of Customs. Units subordinate to and under the General Department of Customs, upon discovering any violation by the enterprise, shall report to the General Department of Customs for review and decision to suspend or temporarily suspend the application of the preferential regime (Form 06/DNUT), Decision to cancel the Suspension/Temporary Suspension Decision (Form 07 issued together with this Circular).

- When the General Department of Customs has not yet issued a decision to temporarily suspend or suspend the application of the preferential regime for the enterprise, the enterprise still applies the preferential regime.

2. Regularly collect and analyze the operation situation and export/import data of enterprises to help enterprises improve their compliance capacity, detect errors early to promptly rectify them.

The General Department of Customs shall organize a specialized unit to cooperate with enterprises to receive, collect information, analyze the operation situation and export/import data of enterprises. In case of detecting any error by the enterprise or issues requiring clarification, notify the enterprise to self-inspect:

- If the enterprise acknowledges the discovery by the customs authority as correct, request the enterprise to self-correct (supplement declaration; supplement documents; pay additional taxes...).

- If the enterprise believes that the discovery by the customs authority is incorrect or there are issues that the customs authority has not yet clarified, request the enterprise to provide a written explanation (with supporting documents and evidence). If the enterprise's explanation shows that the enterprise has sufficient legal basis and evidence proving that the enterprise has no errors or clearly explains the issue raised by the customs authority, the customs authority shall accept the enterprise's explanation. If the enterprise does not explain or cannot explain, jointly inspect the issue with the enterprise and the customs authority shall conclude and handle based on the provisions of the law.

3. Be ready to respond to enterprises' requests for policy and legal advice.

Forms of consultation include:

- Written consultation: The customs authority provides a written response to the questions asked by the enterprise.

- Direct consultation: The customs officer assigned shall receive and respond to the enterprise's consultation requests. If the question requires expertise outside the scope of the officer's responsibility or beyond their capability, they shall refer the matter to a superior for a written response to the enterprise.

Article 24. Responsibilities of Priority Enterprises

1. Compliance with laws.

2. Regularly conduct self-inspection, identify, and rectify errors. In cases where new export or import items have not been agreed upon with unified codes by both parties, the enterprise shall propose item codes and notify the General Department of Customs for review and agreement.

3. Periodically provide information and data on exported and imported goods to customs authorities.

- Once every quarter, within the first week of each quarter, the enterprise shall provide the General Department of Customs with the situation and data on exported and imported goods of the previous quarter (in accordance with Form 08a/DNUT, 08b/DNUT issued together with this Circular).

- Method of provision: Through a computer network connected between the General Department of Customs and the enterprise.

4. Be ready to clarify issues related to the enterprise's exported and imported goods according to the requirements of the customs authority.

When notified by the General Department of Customs of errors or unclear issues in customs documents, the enterprise has the responsibility to recheck, respond, and explain fully and promptly the issues reported by the customs authority.

5. Cooperate well with customs authorities during inspections conducted by the customs authority.

In cases where the customs authority conducts inspections at the enterprise's premises or when the enterprise requests the customs authority to visit regarding unclear issues, the enterprise must create favorable conditions and fully cooperate with the inspection team; for issues with differing opinions, they must seek appropriate solutions in accordance with the law.

6. Prior to implementing the preferential regime as stipulated in this Circular, priority enterprises have the responsibility to notify the General Department of Customs and the customs office handling procedures for the enterprise's exported and imported goods about the customs agent handling such procedures and commit to their compliance with the law. If there is a change in the customs agent, it must be reported to the aforementioned customs authority. Priority enterprises must regularly monitor the compliance of the customs agent to detect any errors (if any) and immediately report them to the customs authority.

Chapter VI

VIOLATION HANDLING; COMPLAINTS AND REPORTS

Article 25. Handling Violations

1. If priority enterprises violate the law, they will be subject to legal sanctions depending on the nature and severity of the violation.

2. Strictly prohibited from organizations and individuals exploiting this preferential regime to violate policies and laws; if violations occur, they will be administratively or criminally punished according to the provisions of the law depending on the nature and severity of the violation.

Article 26. Complaints and Reports

1. Any individual or organization has the right to file complaints; every citizen has the right to report violations of the law during the implementation of this Circular.

2. Complaints and reports, as well as the resolution of complaints and reports, shall be carried out in accordance with the law on complaints and reports.

Chapter VII

IMPLEMENTATION

Article 27. Implementation Responsibilities

1. The Director-General of the General Department of Customs shall direct and guide customs units to implement based on the provisions of this Circular; after the trial period, organize a summary and evaluation of implementation, and develop a system for the Ministry of Finance to submit to the Prime Minister for approval and issuance.

2. The General Department of Customs shall be responsible for closely coordinating with relevant agencies and units to ensure strict and effective implementation of the provisions of this Circular.

Article 28. Effective Date

This Circular takes effect 45 days from the date of signature./.