QUESTIONNAIRE ON DUTIES/TAXES AND CUSTOMS

UNCLAS SECTION 01 OF 03 HANOI 000483

SIPDIS

E.O. 12958: N/A
TAGS: BEXP XXX
SUBJECT: QUESTIONNAIRE ON DUTIES/TAXES AND CUSTOMS
PROCEDURES FOR INFORMATION TECHNOLOGY PRODUCTS AND
ELECTRONIC COMMERCE TRANSACTIONS

To be able to answer the questionnaire cited in the
cable, Post has sent SCO's letters dated Thursday,
February 13, 2003, to the Vietnamese State agencies,
including Ministry of Trade, General Department of
Vietnam Customs, and General Department of Taxation
of Vietnam, requesting their cooperation in answering
the questionnaire. Post has continuously followed up
and urged them to reply, but to date, there is no
official response from these Vietnamese relevant
Government agencies. Consequently, answers in this
cable is done basing on the best of knowledge of
industry specialist through business practice,
unofficial interviews with some contacts at the
relevant Government agencies, including General
Department of Taxation of Vietnam, General Department
of Customs of Vietnam, Ministry of Trade, Ministry of
Post and Telematics, Ministry of Public Security,
Ministry of Labor, Invalids, and Social Affairs, and
several Vietnamese and U.S. information technology
companies operating in Vietnam. Should any questions
on these issues herein be arised, Post will continue
to update and/or further clarify.


I. QUESTIONS ON SOFTWARE / RELATED SERVICES IMPORTS


A. ARE DUTIES AND TAXES ASSESSED ON THE INTELLECTUAL
PROPERTY OF THE SOFTWARE OR ON THE MEDIUM ON WHICH IT
IS PRESENTED? IS CUSTOMIZED SOFTWARE TREATED
DIFFERENTLY THAN PACKAGED SOFTWARE?
Duties and taxes are assessed under HS code list
(e.g. newspapers, magazines, books, documents, etc.,
in tapes, CD-ROM, VCD, DVD, etc.),which includes the
intellectual property element. So far, there are no
legal documents in Vietnam mentioning the distinction
of customized and packaged software.


B. WHAT ARE THE CUSTOMS' DUTIES AND TAX IMPLICATIONS
FOR SOFTWARE SOLD WITH UPDATES WHERE THE FULL SALES
PRICE, INCLUDING COST OF UPDATES, IS SHOWN ON THE
ORIGINAL COMMERCIAL INVOICE? ARE DUTIES/TAXES PAID ON
THAT AMOUNT? WHAT HAPPENS WHEN THE UPDATES ARE SENT
AT A LATER DATE? ARE DUTIES/TAXES APPLIED AGAIN? IF
SO, BASED ON WHAT VALUE? HOW SHOULD INFORMATION BE
PRESENTED ON THE COMMERCIAL INVOICE FOR THE ORIGINAL
AND SUBSEQUENT SHIPMENTS TO AVOID PAYING DUTIES/TAXES
MORE THAN ONCE ON A SINGLE SALE?
So far, Vietnam's current laws and regulations are
not precise and there's no guidance on this
particular issue. As a matter of fact, Vietnam
leaves this type of products open, i.e. software is
subject to duty-free. Tax is only levied on the
physical value of imported diskette/CD-ROM (i.e. the
medium containing software). (E.g. a $US3 CD
contains a software valued at thousands of USD, tax
is levied based on the $US3 value of the diskette/CD-
ROM.) Vietnam Customs has been studying Article 7 of
General Agreement on Tariffs and Trade (GATT)
regarding definition of value to be taxed under the
international general rules to apply in this year of

2003. At present, in case of imported software is
declared according to its value shown in sales
contract and commercial invoice, Vietnam Customs
considers the regular papers and accepts them as
basis to tax. There's no clear and precise
distinction between initial software shipment and its
update, so double taxation might be occurred in this
case. To avoid such a problem, the value of the
software should be clearly declared and stated.


C. ARE SOFTWARE LICENSES CLASSIFIED IN HARMONIZED
SYSTEM 4907? ARE IMPORT DUTIES/TAXES APPLIED? IF
YES, ON WHAT COST/PRICE BASE ARE THEY LEVIED? ARE
WITHHOLDING OR OTHER ADDITIONAL TAXES APPLIED ON
SOFTWARE LICENSES? IF YES, HOW ARE THE TAXES
APPLIED?HS 4907 does seem not appropriate for this
case because such a HS code is not related to
software, but is related to Unused Postage, Check
Forms, Banknotes, Stock, etc. Please check on this.
Answer to this question is the same as the one to the
above question, Vietnam is not ready for this matter.
There's no regulation stated in one official document
regarding this issue. In fact, the Vietnamese
relevant agencies solve incurred problems on a case
by case according to their experience and precedent.


D. IF A U.S. LICENSE AGREEMENT IS INCLUDED IN THE
PACKAGING OR IS PART OF THE INSTALLATION/REGISTRATION
OF SHRINK WRAPPED SOFTWARE IMPORTED FROM THE U.S.,
WOULD THAT AGREEMENT BE BINDING ON CONSUMERS IN YOUR
MARKET? IF SO, WOULD U.S. OR LOCAL LAWS PERTAIN?
[DEFINITION OF SHRINK WRAPPED SOFTWARE: SHRINK
WRAPPED SOFTWARE IS SOFTWARE THAT IS PACKAGED WITH A
TERMS AND CONDITIONS STATEMENT, READY FOR
INSTALLATION BY THE PURCHASER.
This issue is quite new to Vietnam. Answer is the
same as the above one.


E. ARE SERVICES (I.E. TRAINING, SET-UP, ETC) RELATING
TO THE SALE OF SOFTWARE TAXED? IF SO, AT WHAT RATE
AND BASED ON WHAT VALUE? (1) ARE US INFORMATION
TECHNOLOGY SOLUTION PROVIDERS PERMITTED TO SEND
PERSONNEL INTO THE COUNTRY TO SET UP HARDWARE /
SOFTWARE RELATED SYSTEMS? (2) ARE SPECIAL VISAS /
WORK PERMITS AND / OR PROFESSIONAL CERTIFICATION BY
AN ACCREDITED BODY REQUIRED?
No VAT and no import duties are applicable to the
said services, but personal income tax and corporate
income tax is. Customs procedures are not quite
clear thus far. (1) U.S. IT solution providers are
permitted to send personnel into Vietnam for such a
purpose. In general, foreign workers entering
Vietnam must have entry visa issued by Vietnam's
Ministry of Public Security. (2) However, it should
be noted that personnel sent to Vietnam for short
term entrance must be invited by a Vietnamese legal
entity that is licensed to operate in the IT and/or
telecom industry, and the person coming to Vietnam
for a long term must apply for registration and work
permit issued by Vietnam's Ministry of Public
Security and Ministry of Labors, Invalids, and Social
Affairs.


F. ARE IMPORT TAXES (VAT, ETC) APPLIED TO SOFTWARE
DELIVERED TO THE END-USER OVER THE INTERNET? IF SO,
ARE THE TAXES ASSESSED ON THE INTELLECTUAL VALUE OF
THE PROPERTY? WOULD THE SITUATION BE DIFFERENT IF
THIS SOFTWARE WERE INSTEAD DELIVERED TO A DISTRIBUTOR
WHO HAS A LICENSE TO PRODUCE (REPLICATE) AND SELL THE
SOFTWARE?
Until now, this issue is still out of control of
Vietnam's management ability.


G. IS POST AWARE OF ANY LAWS OR EFFORTS TO REGULATE
VOICE OVER INTERNET PROTOCOL (VOIP) SERVICES IN YOUR
COUNTRY? (PLEASE NAME THE SPECIFIC LAW, GOVERNMENT
AGENCY(IES) WITH JURISDICTION, AND CONTACT
INFORMATION)
All telecommunications services in Vietnam, including
the services using VoIP technology, is regulated by
Ordinance on Post and Telecommunications No.
43/2002/PL-UBTVQH10 dated May 25, 2002, promulgated
by Vietnam's National Assembly. However, until now,
there's not yet under-law documents regulating the
VoIP technology-based services is issued. The
Ordinance is passed by the National Assembly, but it
is drafted and monitored by the Ministry of Post and
Telematics (MPT) Contact Information: Ministry of
Post and Telematics of Vietnam, 18 Nguyen Du Street,
Hanoi, Vietnam. Tel: (84-4) 826-3576; Fax: (84-4)
943-6607


II. QUESTIONS ON CUSTOMS PROCEDURES RELATED TO IT
PRODUCTS


A. WHAT ARE THE DOCUMENTATION REQUIREMENTS FOR THE
PHYSICAL IMPORT OF SOFTWARE? FOR OTHER INFORMATION
TECHNOLOGY PRODUCTS?
According to Vietnam's Law on Customs dated June 29,
2001, and relevant guidance legal documents, customs
papers required for imported goods basically include
customs declaration paper, sales contract, commercial
invoice, goods packaging bills, certificate of
origin, etc. The Certificate of Origin (C/O) is
still a problem here. This certificate is issued in
many countries by government agencies or chamber of
commerce and industry, but is not applicable in the
U.S. Neither the U.S. Government nor U.S. Chamber of
Commerce issues this type of papers. Many U.S.
companies and their Vietnamese business partners face
this problem with Vietnam's Customs offices. The
Vietnamese authorities are expecting some U.S.
government agency to officially announce this matter
of fact so that they can inform the local customs
offices not to require such C/O to U.S. exports.
Besides, in terms of IT imported products, it is
required to show "Certificate of Standard Compliance"
issued by Vietnam's Ministry of Post and Telematics.
Contents of some software relevant to cultural and
sensitive information must be checked and vetted by
Vietnam's Ministry of Culture and Information.


B. WHAT ARE THE DOCUMENTATION REQUIREMENTS FOR THE
ELECTRONICALLY DELIVERED IMPORT OF DIGITIZED PRODUCTS
OVER THE INTERNET OR OTHER NETWORKS (I.E. SOFTWARE,
MOVIE DOWNLOADS)?
Vietnam is not capable at this time to manage this
issue. Related agencies still leave this issue open.


C. IS THE IMPORT OF REFURBISHED COMPUTER HARDWARE,
PARTS, AND ACCESSORIES (INCLUDING TONER CARTRIDGES)
PERMITTED? IF YES, WHAT ARE THE DOCUMENTATION
REQUIREMENTS? IS SPECIAL LABELING REQUIRED? WHAT
VALUE SHOULD BE SHOWN ON THE INVOICE? HOW ARE DUTIES
AND TAXES ASSESSED?
The said goods are in the list of goods prohibited to
import into Vietnam in the period 2001-2005 issued by
the Government of Vietnam. However, this matter is
not quite clear in fact in Vietnam. Parts and
accessories are not permitted, but sets of
refurbished or used computers are imported into
Vietnam. Vietnam Customs agrees to import on a case
by case basis. In case of permitting to be imported,
such goods are subject to 5% import duties and 5%
Value Added Tax.


D. IS THE IMPORT OF USED COMPUTER HARDWARE, PARTS,
AND ACCESSORIES PERMITTED? IF YES, WHAT ARE THE
DOCUMENTATION REQUIREMENTS? IS SPECIAL LABELING
REQUIRED? WHAT VALUE SHOULD BE SHOWN ON THE INVOICE?
HOW ARE DUTIES AND TAXES ASSESSED?
The same as the preceding.


E. ARE DUTIES AND TAXES ASSESSED ON THE RE-IMPORT OF
REPAIRED COMPUTER EQUIPMENT? HOW SHOULD THE
COMMERCIAL INVOICE APPEAR?
Taxes are not levied on sum of value, but levied on
added value of the repair contracts (based on repair
bills). I.e. Goods imported into Vietnam that have
to brought abroad for repair or maintenance, when
being reimported to Vietnam, is exempted from import
duties. If there is any added value making usage
value increase is subject to pay import duties and
VAT with respect to the added value. Commercial
invoice indicating the consolidated value and
declaration paper on temporary export for
repair/maintenance are very important to be basis to
define tax rate.


F. SOME COMPANIES ALLEGE THAT CERTAIN COUNTRIES (SUCH
AS GREECE AND SOUTH KOREA, AMONG OTHERS) REQUIRE THAT
CROSS-BORDER, ELECTRONICALLY DELIVERED SOFTWARE BE
ACCOMPANIED BY A PHYSICAL SHIPMENT. IS THIS TRUE FOR
YOUR COUNTRY? IF SO, BY WHAT GOVERNMENT AGENCY
(PLEASE GIVE CONTACT INFORMATION),AND HOW IS THIS
ACTIVITY ENFORCED (PLEASE SPECIFY THE NAME OF THE
APPROPRIATE LAW OR REGULATION)?
This issue is still out of control of Vietnam's
management capabilities in this industry.

(ORIGIN: 6430/ITA/ITI/OITEC/DKRIZ)

REGARDS. BURGHARDT