Vietnam: Cases where the violating entities are not sanctioned despite violations

Concurrently, according to Article 5 of Decree No. 127/2013/NĐ-CP amended by Clause 2 Article 1 of Decree No. 45/2016/NĐ-CP of Vietnam’s Government, cases in which penalties against customs offenses are not imposed include:

1. The cases in which penalties are not imposed according to Article 11 of the Law on Handling administrative violations of Vietnam.

Customs authorities or other competent authorities must be notified of the goods and vehicles that are imported to Vietnam due to unexpected events of force majeure events; such goods and vehicles must be removed from Vietnam after the event is over.

2. The recipient or legal representative has sent a written notification of the mistake made during the import or shipment of goods to Vietnam to the Director of the Sub-department of Customs where goods are stored before the customs declaration is registered, unless the imported goods are narcotics, weapons, reactionary documents, or noxious chemicals in Table 1 in Chemical Weapons Convention.

3. Cases in which adjustments to the declaration are permissible within a certain time limit as prescribed by law. (View details)

4. Any of the violations specified in Article 8 or Article 13 of Decree No. 127/2013/NĐ-CP is committed but the tax difference does not exceed 500,000 VND if the violation is committed by an individual, or 2,000,000 VND if the violation is committed by an organization.

5. The quantity or weight of exported or imported goods is different from the customs declaration according to Article 7 of Decree No. 127/2013/NĐ-CP, but their value does not exceed 10% of the value of goods exported or imported in reality or VND 10,000,000, whichever is lower.

6. The names of exported or imported goods are correct but their codes or tax rates or tax payable are incorrect for the first time.

7. Violations against regulations on customs declaration of cash in foreign currencies, cash in Vietnamese currency, or gold taken along when leaving or entering Vietnam, the value of which does not exceed VND 5,000,000.

Concurrently, the above-mentioned contents are also detailed in Article 4 of Circular No. 155/2016/TT-BTC of the Ministry of Finance of Vietnam as follows:

1. Where a good or vehicle is brought into Vietnam’s territory due to an unexpected event or force majeure event, it is required to inform the Sub-department of Customs or the coast guard or Customs Department of the nearest province or another competent authority defined by law within 03 days from the day on which the good or vehicle is brought into Vietnam.

If such authority is not informed, penalties may be imposed on a case-by-case basis according to Decree No. 127/2013/NĐ-CP, which is amended by Decree No. 45/2016/NĐ-CP of Vietnam’s Government, or otherwise handled as prescribed by law.

Identification of unexpected and force majeure events are specified in Clause 14 and Clause 14 Article 2 of the Law on Handling administrative violations of Vietnam.

2. The notice of errors specified in Clause 2 Article 5 of the consolidated Decree shall be sent by the consignor, consignee or their legal representative. The notice must specify the causes and be sent to the Director of the Sub-department of Customs where the shipment is retained together with documents about the errors before the customs declaration is registered.

Where there are grounds for suspicion that there is collaboration between the consignor and the consignee and/or the shipper for the purpose of tax evasion or smuggling, the customs authority is entitled to reject the errors and handle the cases in accordance with law.  Such rejection shall be given in writing with explanation.

3. Provisions of Clause 3 Article 5 of the consolidated Decree shall be applied to the cases in which the declaration is adjusted as specified in Clause 1(a) and 1(b) Article 20 of Circular No. 38/2015/TT-BTC dated March 25, 2015.

4. In the cases specified in Clause 4, 5 and 7 Article 5 of the consolidated Decree:

a) Where there are grounds for determination that the offense is not penalizable when it is discovered, the person authorized to impose penalties shall only issue a record of document retention;

b) Where there are no sufficient grounds for determining whether an offense is penalizable, the customs official shall issue an administrative customs offense record; The person authorized to impose penalties specified in Clauses 2 to 5 Article 19 of the consolidated Decree, pursuant to applicable regulations of law and on the basis for the customs dossier, relevant documents and the administrative customs offense record, shall decide whether to impose penalties.

c) Tax offenses related to exports or imports specified in Clause 4 Article 5 of the consolidated Decree comprise the offense specified in Clause 1 and Clause 2 Article 8, Clause 1 and Clause 2 Article 13 of the consolidated Decree.

5. Provisions of Clause 6 Article 5 of the consolidated Decree shall be applied to the cases in which declarant who follows export or import procedures for the first time declares the correct names of the goods that are exported or imported in reality but declares incorrect codes of goods according to Vietnam’s Export and Import Classification Nomenclature or declares incorrect rates of taxes thereon according to the export and import tariff schedule applicable at the time of registration of the customs declaration.

6. Penalties shall not be imposed in cases where a good or item is imported against regulations on customs declaration or against provisions of Article 14 of the consolidated Decree but customs procedures are followed by the postal service provider or express delivery service provider on behalf of its owner and there are no grounds for conclusion that the consignor, the consignee and the service provider collaborate to in committing fraud.

Duy Thinh

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