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Decree No. 40/2007/ND-CP dated March 16, 2007 of the Government, providing for customs valuation of imported and exported goods
26/04/2011
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THE GOVERNMENT
-------

SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
----------

No. 40/2007/ND-CP

Hanoi, March 16, 2007

 

DECREE

ON CUSTOMS VALUATION OF IMPORTED AND EXPORTED GOODS

THE GOVERNMENT

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

Pursuant to the Law on Export and Import Duties dated 14 June 2005;

Pursuant to the Law on Customs dated 29 June 2001 as amended on 14 June 2005;

Pursuant to Resolution 71-2006-QH11 of the National Assembly dated 29 November 2006 ratifying the protocol on Vietnam's accession to the World Trade Organization;

On the proposal of the Minister of Finance;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1 Governing scope and applicable objects

1. This Decree regulates customs valuations for the purpose of calculating duty and obtaining statistics on imports and exports.

2. The applicable objects of this Decree shall be imported and exported goods.

3. If an international treaty of which Vietnam is a member contains provisions which are different from those in this Decree, the provisions of such international treaty shall prevail.

Article 2 Interpretation of terms

1. Transaction value means the price actually paid by the purchaser or which the purchaser will have to pay for goods sold in order to export them to Vietnam, after making the adjustment stipulated in article 13 of this Decree.

2. Price actually paid or which will have to be paid means the total amount of money paid by the purchaser or which the purchaser will have to pay directly or indirectly to the seller in order to purchase imported goods.

3. Sale for export to Vietnam means a commercial activity whereby goods are transferred from a seller to a purchaser via a bordergate or border of Vietnam, or from a non-tariff zone onto the domestic market, for the purpose of transferring ownership of the goods from the seller to the purchaser.

4. Export date used in the methods of determining the transaction values of identical and similar imports means the date when goods are loaded onto a means of transport pursuant to a bill of lading. In the case of goods transported by road, export date means the date of registration of the customs declaration.

5. First bordergate of importation means the destination port stated in the bill of lading. In the case of transport by international road, rail or river, first bordergate of importation means the destination port stated in the contract.

6. Exchange of information means the customs office and a customs declarant exchange and supply information relating to determination of dutiable values previously declared, at the request of the customs declarant.

7. Identical imports means goods imported into Vietnam which are identical in all aspects including their physical characteristics, quality and reputation, and which are manufactured in the same country by the same manufacturer or by another manufacturer authorized by the former.

8. Similar imports means goods imported into Vietnam which, though not identical in all aspects, have the same basic characteristics; are made from the same raw materials or materials; have the same function; are interchangeable in commercial transactions; and are manufactured in the same country by the same manufacturer or by another manufacturer authorized by the former.

9. Selling price calculated on the largest quantity sold and used in the deductive method of determining dutiable value means the selling price of the largest aggregate quantity of goods sold during sales of the goods to purchasers without a special relationship with the seller on the first commercial day after import.

10. Earliest day after import and used in the deductible value method means the day on which goods are sold in a sufficient quantity to formulate a unit price (minimum of 10% of the volume of such line of goods in an import consignment).

11. In the same condition as when imported and used in the deductible value method means goods whose shape, characteristics, properties and utility are not altered in any way whatsoever or whose value is not increased or reduced after importation.

12. Goods of the same grade or category and used in the deductible value method means goods in the same group or group framework as a result of their manufacture by the same manufacturer or manufacturing industry, and includes both identical imports and similar imports.

13. A purchaser and seller shall be deemed to have a special relationship when:

(a) One is an employee or director of the other's enterprise;

(b) They are partners contributing capital to the same legally recognized business;

(c) One is a person hiring the other;

(d) One has the power to control the other;

(dd) They are both controlled by the same third party;

(e) They both control the same third party;

A person having the power to control another person as referred to in sub-clauses (d), (dd) and (e) of this clause means a person who can directly or indirectly restrict or instruct such other person.

(g) They have the following family ties:

- Husband and wife;

- Parents and children recognized by law;

- Grandparents and grandchildren with a blood tie;

- Aunts or uncles, nephews or nieces with a blood tie;

- Siblings;

- Brothers or sisters-in-law.

(h) A third person owns, controls or holds five per cent or more of the voting shares of both parties;

(i) Parties associated in business with one another where one party is the sole agent, sole distributor or sole franchisor of the other party shall be deemed to have a special relationship if the relationship is consistent with the provisions in sub-clauses (a) to (h) of this clause.

Article 3 Time of making a customs valuation and time-limit for paying duty

1. The time of making a customs valuation shall be the date on which the customs declarant registers the customs declaration of imports or exports.

2. In a case where a customs valuation is made by the customs office, the time of making the customs valuation shall be the date when the custom office conducts a valuation in accordance with the provisions of this Decree.

3. A customs declarant must complete payment of duty within a maximum time-limit of ten (10) working days from the date on which the customs office provides written notice fixing duty pursuant to the value determined by the customs office.

Article 4 Principles and methods for making a customs valuation for the purpose of calculating duty

Customs valuations for the purpose of calculating duty on imports or exports (hereinafter referred to as dutiable value) shall be made on the following principles and by the following methods:

1. Dutiable value of exports shall be the selling price at the bordergate (FOB price, DAF price) excluding insurance (I) and freight (F).

2. Dutiable value of imports shall be the actual price payable calculated to the first import bordergate, determined by applying in a sequential order each method for determining dutiable value stipulated in articles 7 to 12 inclusive of this Decree and stopping at the method by which dutiable value can be determined.

If a customs declarant makes a written request, the order of application of the methods stipulated in articles 10 and 11 may be reversed.

3. The Ministry of Finance shall, based on the principles for making a customs valuation in order to calculate dutiable value as stipulated in clause 2 of this article, provide specific regulations on dutiable value of imports in the following cases:

(a) After imports have been exempted from duty and commissioned for use in Vietnam, a competent State body permits a transfer or change of the purpose for which duty was exempted;

(b) The imports are hired or borrowed goods;

(c) The imports were sent overseas [i.e. to Vietnam] for repair or processing;

(d) The imports are warranty or sale promotion goods;

(dd) The imports do not have a sale and purchase contract, such import goods to include:

- Goods sold, purchased or exchanged by border residents;

- Goods imported by passengers on entry, and gifts or assets transferred in excess of the duty-free limit;

- Goods imported by enterprises providing postal and express mail services.

(e) Other imported goods which have peculiar features.

Article 5 Customs valuations for statistical purposes

1. Customs valuations of imports or exports for statistical purposes (hereinafter referred to as statistical value) shall be made on the following principles:

(a) The statistical value of goods subject to payment of duty shall be the dutiable value already fixed on the principles and by the methods stipulated in article 4 of this Decree;

(b) In the case of goods not subject to payment of duty or not entitled to consideration for exemption from duty, or for which the dutiable value cannot be determined pursuant to article 4 of this Decree, the statistical value shall be the value declared by the customs declarant on the following principles:

- The statistical value of imports shall be the sale price at the first import bordergate (CIF price);

- The statistical value of exports shall be the sale price at the export bordergate (FOB price, DAF price).

2. The Ministry of Finance shall provide specific regulations on the collation, processing, use and archiving of statistical values.

Article 6 Price database

1. Price database means all information about examination and determination of dutiable values supplied by customs declarants to the customs office or collected by the customs office and calculated up until the time of examining and determining a dutiable value. All this information shall be archived at and managed by the customs office.

2. The price database stipulated in clause 1 of this article shall only be used as a tool to assess risks and shall not be used to fix dutiable value of imports either by replacing the price of the imports or by setting a minimum price.

3. The Ministry of Finance shall provide specific regulations on the establishment, management and use of the available price database.

Chapter II

METHODS OF DETERMINING DUTIABLE VALUE OF IMPORTS

Article 7 Method of determining dutiable value on the basis of the transaction value of imports

1. The dutiable value of imports shall be their transaction value.

The transaction value shall be the price actually paid by the purchaser or which the purchaser will have to pay for goods sold in order to export them to Vietnam after making the adjustment stipulated in article 13 of this Decree.

The price actually paid or to be paid shall be fixed as the total amount of money paid by the purchaser or which the purchaser will have to pay directly or indirectly to the seller in order to purchase imported goods, and shall include the following items:

(a) Purchase price shown on the commercial invoice. When such price includes allowances or reductions for the consignment of imported goods in accordance with international commercial practice, such allowances or reductions shall be deducted when determining dutiable value.

The Minister of Finance shall provide specific regulations on the deduction of these allowances or reductions when determining dutiable value.

(b) Monetary amounts which must be paid by the purchaser but are not included in the purchase price shown on the commercial invoice, including:

- Advance payments, and deposits for production, sale and purchase, freight and insurance of goods;

- Indirect payments to the seller such as amounts paid by the purchaser to a third party at the request of the seller; and amounts paid by way of debt clearing.

2. The conditions applicable to the method of determining dutiable value on the basis of transaction value shall be:

(a) The right of the purchaser to dispose of or use the goods after import is unrestricted, except for:

- Restrictions on the purchase, sale and use of goods pursuant to the law of Vietnam;

- Restrictions on places where the goods may be sold after import;

- Other restrictions which do not affect the value of the goods;

(b) The price of the goods or the sale does not depend on conditions or payment items for which the value of the goods is indeterminable;

(c) After resale of the goods, the importer must not pay any additional amount from the proceeds from the disposal or use of the goods, excluding the adjusted amounts stipulated in article 13.1(d) of this Decree;

(d) The purchaser and seller do not have a special relationship, or if they do it does not affect the transaction value.

3. Proving a special relationship shall not affect the transaction value.

(a) Where the customs office has grounds for believing that a special relationship affects the transaction value, the customs office must immediately notify the grounds in writing to the customs declarant.

(b) The customs office shall facilitate the customs declarant to supply more information in order to clarify that the special relationship between the purchaser and the seller does not affect the transaction value. If on the expiry of thirty (30) working after the date of receiving a notice from the customs office, the customs declarant has failed to supply additional information, the customs office shall determine dutiable value pursuant to article 15.7 of this Decree.

(c) The special relationship between the purchaser and the seller shall be deemed not to affect the transaction value when one of the following conditions is satisfied:

- Results of a check of the purchase and sale transaction of the imports show that such transaction was conducted the same as with purchasers without a special relationship and that the special relationship did not affect the price of the goods;

- The transaction value approximates to one of the following values of a consignment of goods exported to Vietnam on the same day or within sixty (60) days before or after the exportation of the consignment of goods being valued:

(i) The transaction value of identical or similar imported goods sold to other importers not having a special relationship with the exporter (the seller);

(ii) Dutiable value of identical or similar imported goods determined pursuant to article 10;

(iii) Dutiable value of identical or similar imported goods determined pursuant to article 11 of this Decree.

Article 8 Method of determining dutiable value on the basis of transaction value of identical imports

1. For imports for which the dutiable value cannot be determined pursuant to article 7 of this Decree, the dutiable value shall be the transaction value of identical imported goods for which dutiable value has been determined pursuant to article 7 of this Decree.

2. Identical imports must satisfy the following conditions:

(a) Identical consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) ldentical consignments of imported goods were traded at the same level or have been adjusted to the same level of wholesale or retail; and had the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) ldentical consignments of imported goods had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on identical imported goods.

4. If two or more transaction values of identical imported goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 9 Method of determining dutiable value on the basis of transaction value of similar imports

1. For imports for which dutiable value cannot be determined pursuant to articles 7 and 8, dutiable value shall be the transaction value of similar imports for which dutiable value has been determined pursuant to article 7 of this Decree.

2. Similar imports must satisfy the following conditions:

(a) Similar consignments of imported goods were exported to Vietnam on the same day or within sixty (60) days before or after the export date of the consignment of goods being valued;

(b) Similar consignments of imports were traded at the same level or have been adjusted to the same level of wholesale or retail; and have the same quantity or have been adjusted to the same quantity as the consignment of goods being valued;

(c) Similar consignments of imports had the same transport distance and mode, or have been adjusted to the same transport distance and mode as the consignment of goods being valued.

3. Upon application of the method of determining dutiable value pursuant to this article, consignments of goods manufactured by other manufacturers shall only be taken into account if there are no consignments of goods manufactured by the same manufacturer, and such other consignments must comply with the provisions on similar imports.

4. If two or more transaction values of similar goods are fixed when determining dutiable value pursuant to this article, the dutiable value shall be the lowest transaction value after the price level has been adjusted so that the conditions are the same as stipulated in clause 2 of this article.

Article 10 Method of determining dutiable value on the basis of deductible value

1. If the dutiable value of imported goods cannot be determined pursuant to articles 7, 8 and 9 of this Decree, dutiable value shall be the deductible value which shall be determined on the basis of the sale price of the imports, identical imports or similar imports on the Vietnamese market less reasonable expenses arising after importation.

2. The sale price of the imports on the Vietnamese market shall be determined on the following principles:

(a) The sale price of the imports shall be the actual sale price; but if there is no actual sale price then the actual sale price of identical imports or similar imports in the same condition as when they were imported and sold on the domestic market shall be used as the actual sale price;

(b) The importer and the domestic purchaser have no special relationship;

(c) The sale price is calculated on the largest quantity of goods sold and is sufficient for the formation of a unit price;

(d) The goods are sold (wholesale or retail) on the earliest day after importation but no later than ninety (90) calendar days after the date of importation of such consignment of goods.

3. Reasonable expenses arising after importation of goods:

(a) Where the importer purchases goods by the mode of definitive purchase and sale, deductions shall include:

- Expenses being freight and insurance when the goods are sold on the domestic market;

- Taxes, charges and fees payable to the State budget upon import and sale of the goods, which under current law are accounted into sales turnover, cost price and expenses of the sale of the imports;

- General management expenses related to the sale of the imports;

- Profit on sale earned after import of the goods.

(b) Where the importer is the selling agent for a foreign business entity, sale commission shall be a deductible expense.

Where the selling agent is authorized by the foreign business entity to carry out some post import activities in Vietnam outside the agency contract, expenses arising in Vietnam for these activities shall also be deducted within the limit of expenses agreed in the contract.

Post import expenses deducted pursuant to clause 3 of this article must truthfully reflect general expenses and actual profit which are normal in dealings in such line of goods.

4. The dutiable value of imports undergoing further processing in Vietnam shall also be determined on the principles stipulated in clause 1 of this article, and expenses for processing which add value to the goods shall be deducted.

The method of determining dutiable value on the basis of the deductible value stipulated in this article shall not be applied when:

- The imports, after being processed, are no longer in the same condition as when imported;

- The imports, after being processed, still maintain the same characteristics, nature and utility as when imported but such goods constitute only a part of the goods sold on

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