Cablegate: Vietnam: Implementation of Bta Customs Valuation

This record is a partial extract of the original cable. The full text of the original cable is not available.

101042Z Mar 05

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------------------C7D4EA 101049Z /38
FM AMEMBASSY HANOI
TO SECSTATE WASHDC IMMEDIATE 6958
INFO USDA WASHDC
USDOC WASHDC
AMCONSUL HO CHI MINH CITY
ASEAN REGIONAL FORUM COLLECTIVE
USMISSION GENEVA

UNCLAS HANOI 000585

SIPDIS

SENSITIVE

STATE PLEASE PASS TO USTR EBRYAN
STATE ALSO FOR E, EB AND EAP/BCLTV
STATE ALSO PASS USAID FOR CHAPLIN/ANE
USDOC FOR 4430/MAC/ASIA/OPB/VLC/HPPHO
USDA FOR FAS/ITP/SHEIKH
GENEVA FOR USTR

E.O. 12958: N/A
TAGS: ETRD ECON VM
SUBJECT: Vietnam: Implementation of BTA Customs Valuation
Obligation

Sensitive but Unclassified -- Please protect accordingly.

Ref (A) 04 HANOI 980

1. (SBU) Summary: The GVN has made strong efforts to
implement the U.S.-Vietnam Bilateral Trade Agreement (BTA)
obligation to adopt a system of customs valuation based on
the transaction value of the imported merchandise - in
accordance with the WTO Customs Valuation Agreement (CVA).
The GVN is now applying the CVA to more than 90 percent of
its imports, on goods from more than 50 countries, including
the United States. The few complaints Mission has heard
from companies about non-application of CVA appear to be
isolated incidents. However, just over a year after
implementation began, GVN Customs officials are struggling
to address concerns regarding declining revenues and under-
invoicing. Corruption and lack of human and technical
capacity within Customs remain serious problems. The World
Bank is planning a USD 75 million loan for customs
modernization. End summary.

GVN Implements Transaction Value
--------------------------------

2. (SBU) According to the terms of the BTA, the GVN was
obligated by December 10, 2003 to adopt a system of customs
valuation based on the transaction value of the imported
merchandise (rather than arbitrary reference or minimum
prices), in accordance with the Agreement on Implementation
of Article VII of the GATT 1994 (i.e. the Customs Valuation
Agreement or CVA). A June 2002 Government Decree (60), a
December 2003 Ministry of Finance (MOF) Circular (118) and
multiple official letters have effectively established the
legal framework for implementing the CVA. Although
initially Vietnam only planned to apply CVA to goods
originating from the United States and ASEAN, the GVN has
phased in application of CVA to goods from 52 countries
including China on a reciprocal basis over the last year.
Currently, according to the General Department of Customs
(GDC), Vietnam applies CVA to about 90 percent of all
imports. Also, although in early 2004 the MOF decided to
continue using minimum prices to determine customs duties
for seven categories of goods (reftel A), this decision was
reversed in March 2004. No minimum prices for goods remain.

Declining Revenues
------------------

3. (SBU) GDC Officials from Hanoi told Econoff in mid-
February that CVA implementation had resulted in a decline
in the amount of customs revenues collected. While reticent
to state a specific figure, the Deputy Director of the Tax
Collection Department estimated implementing the CVA has
resulted in a 15 to 20 percent reduction in revenues. For
Vietnam, import and export taxes contribute about 12 percent
of total revenues (Note: This is a MOF estimate. Other
estimates indicate this figure could be as high as twenty
percent. End Note.)

The Search for Real Prices
--------------------------

4. (SBU) GDC officials also emphasized their concern that
under the CVA, there is widespread under-invoicing of high
value goods, including imports from the United States.
Under the current system, customs officials accept the
declared value of shipments at the port, but can then seek
clarification of the declared value from the importers
within 15 days. However, GDC officials complained, Vietnam
has limited information to verify the accuracy of the
importers' declared prices. Customs has been working to
upgrade its reference "price bank" but is having difficulty
getting good information on a number of products such as
wine, automobiles, cosmetics and motorcycles. Customs
officials noted that the values of U.S. goods imported into
Vietnam via third countries are particularly difficult to
assess. According to the GDC, some U.S.-origin goods
shipped via third countries have been imported into Vietnam
with invoice prices up to 50 percent lower than the "real
prices." GDC officials acknowledged that Vietnam's "fairly
high" duty rates encourage importers to under-invoice.

5. (SBU) In November 2004, the GDC issued a decision (1361)
outlining procedures for requesting consultations with
importers regarding declared invoice prices. Soon after,
Customs began issuing written requests for consultations to
companies importing high-value items. (Note: These
consultations were essentially unnecessary prior to CVA
implementation because Customs applied import duties based
on reference or minimum prices. End Note.) According to
the Director of the Tariff Valuation Section of HCMC
Customs, factors such as shipment size, value of the
imported goods and significant differences between declared
values and reference prices are factors that trigger a
request for consultations. Officials from HCMC Customs,
which handles about 60 percent of all of Vietnam's imports,
estimated that they have requested consultations with
approximately ten percent of importing companies in the last
few months. In about two percent of the cases, the
companies failed to substantiate the declared invoice
prices. Fifty cases have been referred to the Post-
Clearance Audit Section for further investigation.

6. (SBU) Econoffs spoke with a number of importers to
discuss implementation of CVA in Vietnam. For the most
part, importers concur that the legislative framework the
GVN put in place a year ago has established a solid
foundation for applying CVA in Vietnam. However, importers
expressed concern over Customs' recent efforts to improve
verification of declared invoice prices, highlighting the
lack of training of customs officials. Importers also
acknowledged that CVA implementation has not made a
significant impact on the level of corruption within
Customs. Most importers (or the importing agents they hire)
still routinely pay "facilitation fees" at each stage of the
clearance process.

7. (SBU) The Director of Tan Khoa Trading Company, a HCMC
wine and spirits importer, told Econoff that HCMC Customs
has asked for consultations on every container his company
has imported since January. Each time, HCMC Customs asked
Tam Khoa to provide documentation supporting the declared
invoice price for his shipments, including copies of bank
documents, contracts, written price confirmations from
suppliers, and invoices for sale of the goods in Vietnam.
At least two of these requests for consultations have been
on repeat shipments of the same kind of goods. To date,
Customs has concurred with Tan Khoa's declared invoice
prices and not required payment of additional duties.
However, according Tam Khoa's Director, these consultations
are a drain on the company, as his employees have to spend
significant time copying the documents and meeting with
customs officials.

8. (SBU) HCMC Customs has also requested consultations with
Thicopha Co., a Vietnamese private company that imports U.S.
processed food (including products from Hershey, Sunmaid,
Keebler, Post, and Welch's.) However, Customs has only
requested consultations on three of Thicopha's shipments.
These shipments contained chocolate and raisins, which are
considered higher valued goods. HCMC Customs has not
focused on Thicopha's other shipments of "lower-value" goods
including cereal, tortilla chips, and juice. After
consultations on the declared value of the three disputed
containers, HCMC Customs determined that Thicopha's declared
invoice price was too low and calculated that the company
owes about USD 100,000 in import duties and VAT taxes on the
three containers. (Note: One of these containers had a
declared invoice value of just over USD 13,000 or USD 1.5
per kilo. Thicopha paid about USD 8,700 in customs duties
and VAT on this container. However, HCMC Customs claims the
real invoice price should be USD 6 per kilo plus VAT and
that Thicopha owes about USD 33,000 in taxes and tariffs on
this container. End Note.) Thicopha is currently waiting
for a written request from HCMC Customs for payment of the
additional taxes and duties. The Chairman of Thicopha plans
to contest the decision. At the same time, the company has
delayed shipment of additional containers of chocolate and
raisins until its issues with Customs are resolved.

9. (SBU) While the directors of both Tan Khao and Thicopha
said they did not feel they have been singled out by

Customs, both were clearly very unhappy with the
consultation process. The Director of Tan Khoa expressed
frustration that his company's good record with HCMC Customs
has not resulted in fewer requests for consultations. Tan
Khoa, a private domestic company that has been in business
since 1986, pays about VND 21 billion (more than USD 1.3
million) in taxes each year. For several years, HCMC
Customs has commended Tan Khoa for being a good taxpayer.
However, on shipment after shipment, Tan Khoa is required to
provide additional documentation on its declared invoice
prices. The Director believes that Customs officials need
additional training and information on the products they are
dealing with so they are better prepared to handle clearance
of shipments. The chairman of Thicopha noted that while he
has not been asked for a bribe, he speculated that if he
offered to pay off the officials in charge of his case, his
tax bill would disappear.

Post Clearance Audit
--------------------

10. (SBU) According to officials from HCMC Customs, when
disputes over declared invoice prices are not resolved
through the consultation process, they are referred to the
Post Clearance Audit (PCA) office for investigation and
resolution. If the local PCA office cannot resolve the
dispute, it is then referred to the central PCA office at
the GDC in Hanoi. Article 32 of the Customs Law and a
December 2001 Government Decree (102) provide the existing
legal framework for conducting post-clearance audits.
(Note: The Customs Law was promulgated in late 2001 and
went into effect in 2002. End Note.) Customs has about
200 officials assigned to handle post-clearance audits in
Hanoi and in post-clearance units in provincial customs
offices throughout the country. They are tasked with
inspecting possible violations of the Customs Law at any
time within five years of the date goods clear customs. The
PCA does not operate on a risk management basis; audits are
not conducted randomly and are not used to deter fraud.
Rather, post-clearance inspections only take place if
Customs has reason to suspect that a violation of the
regulations has taken place.

11. (SBU) According to Customs officials and a variety of
technical assistance providers, reforming Vietnam's post-
clearance audit system is one of the primary objectives of
GVN efforts to revise the Customs Law. The National
Assembly is currently scheduled to approve amendments to the
Customs Law at its May 2005 session. However, it appears
very likely that this date will slip to November 2005.
Vietnam is receiving significant technical assistance revise
the Customs Law, including from the USAID-funded Support for
Trade AcceleRation (STAR) project, Japan International
Cooperation Agency (JICA) and the World Bank (WB).

Other Customs-Related Obligations
---------------------------------

12. (SBU) In addition to CVA implementation, the BTA has
several other customs-related obligations such as
implementing and enforcing border measures to protect
intellectual property rights (IPR). Articles 57-59 of the
Customs Law authorize Customs to protect IPR at the border.
A December 2003 Circular (101) and a December 2004 Circular
(129) provide more detailed guidance on border enforcement.
However, IPR enforcement at the border (and generally
throughout Vietnam) remains weak.

13. (SBU) The BTA also obligates Vietnam to establish
procedures to review administrative decisions, including on
customs issues. According to the BTA, these procedures must
include an opportunity to appeal to an administrative body
and then, if necessary, to a judicial body. Vietnamese law
currently does not support this obligation because cases
that are appealed administratively cannot subsequently be
appealed judicially. The GVN, with assistance from STAR, is
currently considering how to bring the Law on Complaints and
Denunciations into conformity with BTA obligations on
administrative review.

Customs Modernization

---------------------

14. (SBU) In March 2004, the MOF approved a "Strategic Plan
for customs Reform and Modernization for 2004-2006." (Note:
some of the goals and objectives of this plan extend out to
2010. End Note.) The Strategic Plan document acknowledges
shortcomings in customs operations including: the low level
of skills and expertise of customs officials, obsolete and
insufficient information technology systems, corruption, and
insufficient post-clearance audit procedures. The
Strategic Plan focuses on five primary areas for reform:
institution building; upgrading information technology and
equipment, reforming organizational structure, training and
human resource development and upgrading facilities and
infrastructure. Some of the specific goals cited in the
strategy document include: moving to a management system
based on risk management techniques; reforming and
standardizing customs procedures; automating customs
procedures for 95 percent of goods; reforming personnel
management including recruitment, training and retention of
staff. An advisory committee, chaired by a Vice Minister of
Finance and including representatives of the MOF, GDC and
related line ministries, is overseeing the customs reform
effort.

15. (SBU) The World Bank is currently finalizing plans to
provide an approximately USD 75 million dollar loan to the
GVN for customs modernization. The "Vietnam Customs
Modernization Project" (VCMP) will be implemented over five
years, from June 2005 to December 2010 and will seek to
strengthen the capacity of Customs by 1) introducing modern
systems and procedures based on international practices; 2)
improving the organizational structure and strengthening the
human, financial, and physical resource capacity of the GDC
and 3) updating the GDC's information and communication
technology systems. World Bank representatives have worked
closely with USAID, JICA, the IMF, the Asian Development
Bank and the EU to develop the project proposal.

16. (SBU) Comment: The GVN should be praised for its
efforts to put in place a solid legal framework for
implementing the CVA. With the help of significant
technical assistance from a variety of donors, the GVN is
moving forward with broad customs modernization and reform
and should be encouraged in these efforts. Mission will
continue to look for opportunities in which the USG can
provide additional assistance.

MARINE

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