Circular No. 72/2004/TT-BTC guides the management and disposal of confiscated items and means seized for state funds due to administrative violations.

CIRCULAR

Guidelines for managing and disposing of assets and means confiscated and transferred to the State Treasury due to administrative violations

due to administrative violations

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Pursuant to Decree No. 14/1998/NĐ-CP dated March 6, 1998 of the Government on state asset management; Pursuant to Decree No. 134/2003/NĐ-CP dated November 14, 2003 of the Government detailing certain provisions of the Ordinance on Handling Administrative Violations 2002, the Ministry of Finance issues guidelines for managing and disposing of assets and means confiscated and transferred to the State Treasury due to administrative violations as follows:

I. SCOPE AND APPLICABLE SUBJECTS

1. These Circulars guide the determination of value, preservation, classification, transfer, disposal, and organization of public auction of assets and means (hereinafter referred to collectively as property) confiscated and transferred to the State Treasury due to administrative violations and the management of revenues and expenditures arising from the management and disposal of such confiscated property.

2. The authority issuing the decision to confiscate assets and means used for administrative violations as stipulated in the Ordinance on Handling Administrative Violations 2002; state financial agencies at all levels and the National Treasury at all levels; Auction Councils at all levels; Provincial Service Centers for Auctions; organizations and individuals with rights and obligations related to the public auction of confiscated property transferred to the State Treasury shall be responsible for implementing these Circulars.

II. DETERMINATION OF THE VALUE OF ADMINISTRATIVE VIOLATION ASSETS

1. Determination of asset value:

In cases where it is necessary to apply the measure of confiscating assets, the authority issuing the decision to temporarily detain invites representatives of the same-level state financial agency to examine and appraise the value of the assets before making a confiscation decision. The determination of asset value shall be carried out as follows:

- Based on the quantity and quality of the assets subject to confiscation; based on the prices of various types of assets confiscated and transferred to the State Treasury in the locality as prescribed by the Department of Finance of the province or centrally-administered city (if applicable); based on the market price of similar assets in the local area or the price of assets with the same technical specifications and quality as those to be appraised; referring to import-export tax prices, registration fee prices, natural resource tax prices, and asset prices in accompanying documents such as economic contracts, purchase-sale contracts, transportation contracts, insurance contracts, sales invoices, import declarations, and other relevant documents; the authority issuing the confiscation decision and the representative of the state financial agency determine the value of each asset.

- For used assets, the remaining quality percentage of each asset must be determined. For assets that are difficult to assess quality, it may be necessary to hire a state-authorized agency or a specialized consulting unit to determine the quality.

- The value of assets involved in a violation case (when there is a decision to confiscate and transfer to the State Treasury) is determined based on the unit price of the assets and the actual quantity of assets confiscated and transferred to the State Treasury.

- In cases where the type of assets involved in administrative violations has not been priced by the Department of Finance, is difficult to appraise, or there is no agreement between the authority issuing the confiscation decision and the representative of the state financial agency, the authority issuing the decision must establish an Asset Appraisal Council. The composition of the Asset Appraisal Council includes:

+ Representative of the same-level state financial agency - Chairperson of the Council

+ Representative of the authority issuing the confiscation decision (or the agency submitting the confiscation decision to the competent authority) - Vice-Chairperson of the Council

+ Representative of the technical specialist agency (if necessary) - Member

+ Representative of the Provincial Service Center for Auctions (if available) - Member

+ Some members from the state financial agency and the agency issuing the confiscation decision to form a working group assisting the Council according to the decision of the Chairperson of the Council.

The Asset Appraisal Council operates on a collective basis. Decisions of the Council must be approved by more than half of the Council members. In case of a tie vote, the decision follows the opinion of the Chairperson of the Council.

Within seven working days from the date of the decision to establish the Council, the Asset Appraisal Council must complete the appraisal of the violated assets. The Asset Appraisal Council may hire a functional agency to determine the value of the assets before deciding on the value of each type of asset.

2. In cases where the authority issuing the decision to confiscate assets and means is not limited by the value of assets as stipulated in Chapter IV of the Ordinance on Handling Administrative Violations 2002, the asset value can be appraised after the confiscation decision is made. The determination of the value of assets already confiscated is carried out according to the provisions of Point 1 of this Section.

The asset valuation according to the guidance in Points 1 and 2 of this Section must be recorded in a record according to Model No. 1 attached to these Circulars.

3. The value of the assets determined in this Section will be used to transfer to agencies and units managing and using them; transferred to the state financial agency or the Provincial Service Center for Auctions for public auction.

III. PRESERVATION, CLASSIFICATION, TRANSFER AND DISPOSAL OF ASSETS CONFISCATED AND TRANSFERRED TO THE STATE TREASURY

1. Classification and disposal of assets that have been decided to be confiscated and transferred to the State Treasury

1.1. The agency issuing the confiscation decision shall take the lead in disposing of the following types of assets:

a) For assets that are goods or items prone to deterioration (fresh live goods, easily perishable, difficult to preserve, processed food products with less than 30 days remaining shelf life...), the agency (person) issuing the confiscation decision must organize the preparation of a record and immediately sell through open sale methods without necessarily going through public auction. The proceeds shall be deposited into a temporary holding account opened at the National Treasury of the district-level financial agency where the assets were seized.

b) For assets that are new drugs, weapons, explosives, radioactive materials, special technical equipment related to national security and defense; objects of historical, cultural value; antiques, ancient artifacts; national treasures; rare forest products in Group IA, IB, and other assets not allowed to circulate, the agency issuing the confiscation decision shall coordinate with the state financial agency and related sectors to hand over to the specialized state agency managing such assets for organized management and disposal in accordance with the law.

c) For harmful cultural products, counterfeit goods with no usable value, items harmful to human health, animals, plants that must be destroyed, and other goods not permitted to circulate on the market, the authority issuing the confiscation decision shall establish a Council for disposal and destruction. The Council shall include representatives from the authority issuing the confiscation decision, the financial agency, and relevant state management agencies. The destruction process must be documented in a record containing signatures of all Council members.

d) For live wild animals that are healthy or have recovered to good health after rescue, the forest rangers shall cooperate with the financial agency and related units to release them back into their natural environment suitable for each species' ecology, or sell them to individuals or organizations permitted to breed, develop, conduct scientific research, or meet cultural and living needs according to local market prices. The release of animals into the natural environment must be documented in a record containing signatures of all participating members; in cases where sale is permitted, it must be carried out in accordance with the provisions of the law. Proceeds from the sale of wild animals must be deposited into a temporary account opened by the financial agency at the State Treasury of the province (in cases where the confiscation decision is made by the Forest Protection Branch Chief or the Forest Protection Department Director) or district level (in cases where the confiscation decision is made by the Forest Ranger Station Chief, Forest Protection Team Leader, Forest Protection Supervision Team Leader, or Mobile Forest Protection Team Leader).

e) For assets consisting of Vietnamese currency and foreign currencies, the authority issuing the confiscation decision must immediately document and deposit these amounts into a temporary account opened by the financial agency at the State Treasury of the province (for assets confiscated by central or provincial authorities) or district level (for assets confiscated by district or commune authorities). District and provincial financial agencies are responsible for recording the centralized foreign currency fund (in original currency); simultaneously, they convert the foreign currency into Vietnamese dong based on the exchange rate published by the Ministry of Finance for accounting purposes.

1.2. For remaining assets (excluding those specified in point 1.1 above), they shall be handled as follows:

a) Based on the value of the assets subject to confiscation and transfer to the national treasury determined in Section II of this Circular, the authority issuing the confiscation decision shall transfer the administrative violation asset files, including the Confiscation Decision, Confiscation Record, Asset Value Determination Record, and copies of relevant documents and papers related to confiscated assets, to the provincial financial agency for assets confiscated in a single violation valued at 10,000,000 VND or more; and to the district financial agency for assets confiscated in a single violation valued under 10,000,000 VND.

b) In accordance with current regulations on state asset management, after receiving all transferred files from the authority issuing the confiscation decision, the financial agency shall be responsible for coordinating with the authority issuing the confiscation decision to classify the assets and decide or submit to the competent authority for approval on the asset disposal plan as follows:

- For assets that can be transferred to state agencies or organizations for management and use (such as transportation means, work equipment, etc.), the financial agency shall base its decision or submission to the competent authority on asset usage standards, quotas, and the actual condition of each unit's assets.

- For assets consisting of gold, silver, precious metals, gemstones, and valuable certificates, they shall be submitted to the provincial State Treasury (for assets confiscated by central or provincial agencies) or district State Treasury (for assets confiscated by district or commune agencies) at the location where the assets were seized for auction organization.

The auction of gold, silver, gemstones, precious metals, and valuable certificates shall be conducted by the Department of Finance or the district financial agency, which shall report to the People's Committee at the same level for approval. The procedures for the auction shall comply with current laws governing the auction of assets. Proceeds from the auction must be deposited into a temporary account opened by the financial agency at the State Treasury.

- For remaining assets, they shall be handed over to the Provincial Auction Service Center or the Valuation and Auction Council under the financial agency for auction. Designated sales shall not be implemented for these types of assets.

Within ten days from the date the asset disposal plan for transferring to the national treasury is approved by the competent state authority, the authority issuing the confiscation decision shall coordinate with the same-level financial agency and related sectors to implement the transfer of assets for disposal according to the approved plan:

- For assets decided to be transferred to state agencies or organizations, implementation shall follow the guidelines set forth in Circular No. 43 TC/QLCS dated July 31, 1996, issued by the Ministry of Finance, regarding the receipt and transfer of assets between administrative and service agencies and economic organizations pursuant to decisions by competent authorities.

- The transfer of assets decided to be auctioned shall be carried out as follows:

+ For assets confiscated in a single administrative violation valued under 10 million VND, they shall be transferred to the district financial agency at the location where the assets were seized for auction organization.

+ For assets confiscated in a single administrative violation valued at 10 million VND or more, they shall be transferred to the Provincial Auction Service Center for auction organization according to the Power of Attorney Auction Contract signed between the Department of Finance and the Provincial Auction Service Center (Model No. 2 attached to this Circular). In cases where the Provincial Auction Service Center has not been established in the locality, these assets shall be transferred to the Department of Finance for auction organization.

2. When transferring assets, the agency issuing the confiscation decision must hand over all relevant files to the receiving agency, including: The decision to confiscate for the State Treasury; The decision approving the asset disposal plan by the competent state agency; The record confirming the value of the assets; any documents related to the right of ownership and lawful use of the assets (if any); and other related documents. These files and papers must be recorded in the Asset Transfer Record according to Model No. 3 issued together with this Circular.

3. Management of administrative violation assets when there is a decision to confiscate for the State Treasury.

3.1. The agency issuing the confiscation decision: Shall be responsible for preserving the entire asset from the time of issuing the temporary detention or confiscation decision until the transfer of the asset to the receiving agency according to the disposal plan approved by the competent authority.

3.2. The receiving agency: After the disposal plan has been approved by the competent authority, it must immediately organize the receipt. In cases where the agencies or units receiving the assets do not have storage facilities or have not yet received the assigned assets, the receiving agency or unit may authorize the confiscating agency or another agency to hold the assets on their behalf and must pay the related costs to the authorized agency for preservation. The authorization for asset preservation must be established in a contract according to Model No. 4 issued together with this Circular.

IV. ORGANIZING THE AUCTION OF CONFISCATED ASSETS FOR THE STATE TREASURY

1. Auctioning through the Appraisal and Auction Council.

1.1. The Appraisal and Auction Council for State Assets (hereinafter referred to as the Auction Council) shall be established at the district level and provincial level (for provinces and centrally-administered cities that have not established a Provincial Auction Service Center).

1.2. Within 15 days (for movable assets) or 30 days (for immovable assets) from the date of receiving confiscated assets for the State Treasury, the financial agency must submit to the People's Committee at the same level to issue a decision or authorize the financial agency to issue a decision to establish the Auction Council to organize the auction of the received assets. The members of the Auction Council include:

- The leader of the financial agency at the same level - Chairperson;

- A representative of the agency issuing the confiscation decision (or the agency submitting the confiscation decision to the competent authority) - Vice-Chairperson;

- Depending on the characteristics and nature of each case and the actual situation in the locality, the person authorized to decide on establishing the Council will determine other members (such as the Prosecutor's Office, Public Security, Inspectorate, and technical agencies...) to participate in the Council as appropriate. The Chairman of the Auction Council may mobilize some members from the financial agency and the confiscating agency to form a working group to assist the Council.

1.3. The establishment of the Auction Council shall be decided by the competent authority as stipulated in point 1.2 above, in accordance with the local circumstances. In special cases, the Provincial People's Committee may decide to establish the Auction Council for each auction. After organizing the auction, settling accounts for auction revenues and expenditures, and depositing the full amount of auction proceeds into the State Budget, the Auction Council ceases its operations.

1.4. The public asset management department under the financial agencies at various levels, as permanent members of the Auction Councils, are responsible for maintaining the activities of the Auction Council and performing tasks assigned by the Council Chairman.

1.5. Tasks of the Auction Council:

- Determining the starting price for the auction based on the asset value determined in Section II of this Circular. If the auction price varies significantly from the previously determined price in Section II of this Circular, or if more than three months have passed since the last valuation, the Council must revalue the asset according to the guidance provided in point 1 of Section II of this Circular.

- Organizing the auction in accordance with the principles and procedures prescribed by the law on asset auctions; Implementing settlement of auction revenues and expenditures during the auction process and depositing the full amount of auction proceeds into the State Budget after deducting auction-related expenses as prescribed by current laws.

- Performing other tasks specified in the establishment decision of the competent authority.

2. Auctioning through the Provincial Auction Service Center.

2.1. The Provincial Auction Service Center is a revenue-generating public service unit established by the Chairman of the Provincial People's Committee upon the proposal of relevant sectors. The name, functions, specific tasks, and supervising agency of this public service unit shall be determined by the Chairman of the Provincial People's Committee in accordance with the actual situation in the locality, but it must have the function of auctioning confiscated assets for the State Treasury.

2.2. Within 30 days for movable assets and 50 days for immovable assets from the date of signing the Entrusted Auction Agreement with the financial agency, the Center must organize the auction of the assets in accordance with the law on asset auctions. The starting price for the auction shall be determined according to the guidance provided in point 1.5 of this Section.

2.3. The proceeds from selling confiscated assets for the State Treasury, the Center must deposit 100% into the temporary account opened by the Department of Finance at the State Treasury, after deducting the auction fee earned and transportation, delivery, and preservation costs in cases where it is entrusted to perform these tasks. The auction fee shall be regulated by the Provincial People's Congress in accordance with the law on fees and charges.

V. MANAGEMENT AND USE OF REVENUES AND EXPENSES ARISING FROM THE DISPOSAL OF CONFISCATED ASSETS FOR THE STATE TREASURY

1. Management of proceeds from selling confiscated assets for the State Treasury:

1.1. All proceeds from the sale of confiscated assets that have been transferred to the State Treasury must be deposited into a temporary holding account opened at the State Treasury by the financial authority and managed by such authority. The proceeds from the sale of assets sold by any level shall be concentrated into the temporary holding account of the financial authority at that level opened at the State Treasury. For goods, items prone to damage, Vietnamese currency, foreign currency converted into Vietnamese currency, and wild animals, the provisions set out in paragraph a, d, e of point 1.1, Section III of this Circular shall apply.

1.2. All revenues from the sale of confiscated assets that have been transferred to the State Treasury, after deducting expenses as stipulated in point 2 of this Section, shall be remitted to the same-level state budget for management and use in accordance with the law.

2. Management of expenditures:

2.1. Financial authorities at all levels shall base their actions on national regulations, the scale and nature of each case, the reasonableness and legality of related expenditure items, and the proposals of participating agencies and organizations to pay for the following:

- Expenses for investigation, verification, purchasing information, apprehension; transportation and preservation costs; testing, appraisal, and valuation costs for temporarily held assets; compensation for losses due to objective reasons up to the time of the competent authority's decision approving the asset disposal plan (if any). In cases where the confiscation decision-making agency has been allocated warehouses, staff, transport means, and regular funding by the State, related transportation and preservation costs for those assets shall not be reimbursed.

- Costs for receiving, loading, transporting, and storing assets confiscated and incorporated into the state treasury from the time of the decision approving the handling plan by the competent authority until the completion of the handling process.

- Costs incurred during the process of selling administrative violation assets: Initial valuation costs; costs for hiring appraisals, repairs, or loss recovery due to objective reasons; auction fees of the Auction Service Center; auction costs implemented by the Auction Committee.

The Auction Committee may be temporarily advanced up to a maximum of 5% of the value (based on the initial price) of the auctioned assets to cover auction-related expenses. After the auction concludes, the Auction Committee must settle the advance payment according to current regulations.

- Overtime allowances; allowances for concurrent duties performed by individuals involved in investigation, apprehension, management, and handling of assets transferred to the State Treasury. Specific amounts are determined by the Chairman of the People's Committee of provinces and centrally-administered cities based on the proposal of the Department of Finance.

- Support funds to supplement the operating costs of forces involved in handling administrative violations as prescribed by current laws. Funds for summarizing, concluding, and rewarding collectives and individuals who have achieved results in managing and handling assets transferred to the State Treasury during summary and conclusion periods.

- Other related costs associated with apprehending, confiscating, preserving, and disposing of assets.

2.2. For certain types of expenses serving special tasks of agencies authorized to issue confiscation decisions, such as investigation, verification, purchasing information, apprehension, etc., ministries in charge of these sectors shall coordinate with the Ministry of Finance to determine expense levels ensuring service provision for these special tasks, serving as a basis for settlement and finalization.

3. Sources of funds:

3.1. The source of funds for expenditures as stipulated in point 2 of this Section shall be drawn from the temporary holding account of the financial authority opened at the State Treasury. In cases where asset disposal does not generate revenue (assets must be destroyed, sales revenue is insufficient to cover costs, etc.), the costs shall be covered by the state budget.

3.2. For assets transferred to state agencies and organizations for management and use, expenses arising from the decision approving the disposal plan by the competent authority until the completion of handover shall be borne by the receiving agency or organization.

VI. MANAGEMENT OF ASSETS CONFISCATED AND TRANSFERRED TO THE STATE TREASURY HANDLED BY THE MINISTRY OF FINANCE

1. Assign the State Asset Management Bureau:

1.1. To cooperate with the agency issuing the confiscation decision to determine asset values, organize receipt, processing, or submission to the competent authority for processing; implement the transfer of assets to management and usage agencies or assign them to the Information, Advisory, and Property Services Center (State Asset Management Bureau) for auction as decided by the competent authority.

1.2. To organize the determination of initial prices for assets assigned to the Information, Advisory, and Property Services Center for auction.

1.3. To review and organize payments for related expenditures concerning the disposal of assets transferred to the State Treasury as specified in point 2 of Section V of this Circular.

2. All proceeds from the sale of assets transferred to the State Treasury handled by the Ministry of Finance shall be deposited 100% into the "State Asset Management Revenue and Expenditure Account" of the State Asset Management Bureau opened at the State Treasury and then remitted to the Central Budget (after deducting expenses as stipulated in point 2 of Section V of this Circular).

3. Procedures and formalities for determining asset values; disposal and transfer of assets; procedures and formalities for organizing auctions; fees earned from auctions by the Information, Advisory, and Property Services Center; management of revenues and expenditures related to asset disposal shall be carried out strictly in accordance with the provisions of this Circular and current laws on auctions.

VII. IMPLEMENTATION ORGANIZATION

1. The State Asset Management Bureau, Departments of Finance, and county-level financial authorities shall assist the Minister of Finance and People's Committees at all levels in guiding and inspecting the management and disposal of assets transferred to the State Treasury in accordance with this Circular and implementing semi-annual and annual reporting systems as per Model No. 5 attached to this Circular.

2. Pursuant to Circular Joint Circular No. 115/2003/TTLT/BTC-BNV dated November 28, 2003 of the Ministry of Finance and the Ministry of Home Affairs guiding the functions, tasks, and organizational structure of specialized agencies under the People's Committees at all levels in the field of finance; pursuant to the guidance of the Ministry of Finance on the management tasks of state assets at the Department of Finance, the Director of the Department of Finance shall be responsible for submitting to the People's Committee of the province or centrally governed city for deciding to establish a public service unit under the Department to implement services related to state assets, including the service of selling confiscated assets to the state treasury by auction.

3. This Circular takes effect fifteen days from the date of publication in the Official Gazette. The provisions on the management and handling of confiscated assets transferred to the state treasury due to administrative violations in Decision No. 1766/1998/QD-BTC dated December 7, 1998 and Decision No. 29/2000/QD-BTC dated February 29, 2000 of the Minister of Finance are hereby abolished.

4. In the course of implementation, if any difficulties arise, it is requested that relevant agencies and units report to the Ministry of Finance (State Asset Management Department) for coordination in resolving them.