Công văn 769/TCHQ-TXNK năm 2019 về xác định ưu đãi thuế hàng hóa nhập khẩu của dự án đầu tư do Tổng cục Hải quan ban hành

To: Department of Planning and Investment of Tay Ninh Province.

General Department of Customs receives Official Dispatch No. 134/SKHDT-HTDT dated January 15, 2019 of Department of Planning and Investment of Tay Ninh Province requesting guidelines for confirming exemption of import duties of goods in order to establish fixed assets of investment projects. General Department of Customs gives its opinions hereunder regarding this matter:

1. Pursuant to Clause 3 Article 3 Law on Investment No. 67/2014/QH13:

“Expansion project means a project to make investment to expand the scale, improve the capacity, apply new technologies, reduce pollution or improve the environment”.

- Pursuant to Clause 6 Article 12 Decree No. 87/2010/ND-CP dated August 13, 2010 of Government; Clause 7 Article 101 Circular No. 194/2010/TT-BTC dated December 6, 2010 of Ministry of Finance: Goods imported to establish fixed assets of investment projects in fields benefitting from import duty preferential treatment under Annex I attached to Decree No. 87/2010/ND-CP or in administrative divisions receiving import duty preferential treatment under List of administrative divisions receiving corporate income tax preferential treatment attached to Decree No. 124/2008/ND-CP dated December 11, 2008 of Government on elaborating and providing guidelines for a number of Articles of Law on Corporate income tax and Decree No. 53/2010/ND-CP dated May 19, 2010 of Government on areas benefitting from investment incentives and corporate income tax preferential treatment with respect to recently established administrative divisions due to adjustment to administrative landmarks by Government and investment projects whose ODA capital is exempted from import duty, including: 

a) Equipment and machinery;

…..

dd) Domestic construction materials yet to be manufactured.

- Pursuant to Clause 8 Article 12 of Decree No. 87/2010/ND-CP: “Exemption of import duty applied to import goods specified in Clauses 6 and 7 of this Article shall also be applied to cases of project scale expansion and technology replacement or renewal”.     

- Pursuant to Point 41 under List of administrative divisions receiving corporate income tax preferential treatment attached to Decree No. 124/2008/ND-CP dated December 11, 2008 of Government: “Communes of Tan Bien, Tan Chau, Chau Thanh and Ben Cau” are listed as areas with particular socio-economic hardships.

- Pursuant to Clause 11 Article 16 Law on Import and export duties No. 107/2016/QH13, Article 14 Decree No. 134/2016/ND-CP dated September 1, 2016 (replacing Decree No. 87/2010/ND-CP dated August 13, 2010), goods imported to establish fixed assets of entities benefitting from investment incentives according to investment laws shall be exempted from import duty, including:

a) Machinery and equipment; components, parts, detached parts and attachments to be assembled in sync or used in sync with machinery and equipment; materials and constituents used for manufacture of machinery and equipment or for manufacture of components, parts, detached parts and attachments of machinery and equipment;

……

Import duty exemption applied to import goods specified in this Clause shall also be applied to investment projects for new construction and expansion.

- Pursuant to Clause 1, Clause 4 Article 102 Circular No. 194/2010/TT-BTC (currently Article 30 Decree No. 134/2016/ND-CP dated September 1, 2016), goods specified in Clause 11 Article 101 of this Circular must be registered in list of import and export goods benefitting from tax exemption. Application for the list shall comply with Clause 4 Article 102 of Circular No. 194/2010/TT-BTC.

According to Circular No. 194/2010/TT-BTC, application for the list consisting lists of import and export goods applied for tax exemption in conformity with investment fields, sectors, project purposes and scales and a quantity monitoring sheet shall be produced once for entire projects, for each phase of the projects, for each work item in the projects (specified in investment permits issued by competent agencies or techno-economic assessment, scientific and technical documents of the projects, etc. indicating that the projects are executed in each phase or each work item) or for each combination and assembly line if goods are a system of combined assembly line of equipment and machinery.

In case a list registered for the entire projects, work item, construction, combination or assembly line is faulty or requires revision, the customs declarant may revise should documents be submitted to the customs authority before importing the goods to prove the addition or revision to be suitable for requirements of the projects.

- Pursuant to Clause 6 Article 102 Circular No. 194/2010/TT-BTC (currently Article 30 Decree No. 134/2016/ND-CP dated September 1, 2016), the list shall be registered before making the first import declaration of projects, work items, project phase or projects for extension.

- Pursuant to Clause 1, Clause 2 Article 104 Circular No. 194/2010/TT-BTC (currently Article 30 Decree No. 134/2016/ND-CP dated September 1, 2016), cases subject to registration of lists of tax-exempt imports, apart from using tax-exempt goods for proper purposes, taxpayers shall make financial settlement with customs offices to which lists of tax-exempt imports have been registered on the import and use of tax-exempt goods on registered lists for management, monitoring and inspection of use of all tax-exempt goods. Settlements shall be made according to form No. 4 or No. 5, Appendix II to this Circular.

Settlement time limit: Within 45 days after the completion of the import of goods on the list of tax-exempt goods already registered with customs offices.

2. Pursuant to Clause 3 Article 3 of Law on Investment No. 67/2014/QH13, in case of investment project for construction of “Nhà máy chế biến tinh bột mì” (Wheat starch manufacturing plant) of Dinh Khue Single-member Limited Liabilities Company issued with investment registration certificate No. 45121000260 dated January 28, 2013, the certificate revised for the first time No. 6276132775 dated July 7, 2016 by Department of Planning and Investment of Tay Ninh Province does not indicate scale expansion, capacity increase, technology change, pollution reduction or environment improvement thus is not a project for expansion.

3. Due to inappropriate details in Official Dispatch No. 134/SKHDT-HTDT dated January 15, 2019 of Department of Planning and Investment of Tay Ninh Province (the investment project of Dinh Khue Single-member Limited Liabilities Company is issued with investment certificate No. 45121000260 dated January 28, 2013 by People’s Committee of Tay Ninh Province. The certificate revised for the first time dated July 7, 2016 issued by Department of Planning and Investment which specifies progress of the project as: initiated in 2004). On the other hand, Department of Planning and Investment of Tay Ninh Province does not attach any documents to provide basis for General Department of Customs to respond at request of Department of Planning and Investment of Tay Ninh Province.   Hereby request Department of Planning and Investment of Tay Ninh Province to issue notice to enable the Company on the basis of regulations mentioned above to implement and fully submit documents to customs authorities where the list of tax-exempt goods is declared or fully submit documents to General Department of Customs for guidance.

For your reference./.

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