Penalties for acts of origin fraud have been issued, but there is no specific regulation on which acts are considered as Vietnamese origin fraud and which acts are considered inaccurate declaration of Vietnamese origin, causing difficulties in applying penalties uniformly.

Professional activities at Bien Hoa Customs Branch. Photo: N.H 

Through the process of researching and implementing Decree 128/2020 / ND-CP of the Government on penalties for administrative violations in the customs field (effective from December 10, 2020), Dong Nai Customs Department raised some issues.

Accordingly, Article 17 of Decree 128 provides penalties for import, export, temporary import for re-export, transit and border-transfer of fake Vietnamese origin goods. However, Decree 128 does not explain and specifically guide acts of Vietnamese origin fraud, making it difficult for the customs authority in apply penalties uniformly.

Dong Nai Customs Department also raised a problem on penalties for inaccurate declarations that leads to tax differences. Specifically, for taxable imported goods, if there is an inaccurate declaration but the inaccurate declaration does not affect the tax payable, penalties described in Point B, Clause 1, Article 8 of Decree 128 will be applied. If there is an accurate declaration, and it leads to a tax difference of less than VND500,000 per declaration for an individual and VND2 million per declaration for an organization, penalties will not be applied.

According to Dong Nai Customs Department, this provision is inappropriate and unfair. It is also not consistent with the principles of handling administrative violations specified in Article 3 of the Law on handling of administrative violations: “The sanctioning of administrative violations must be based on the nature, seriousness and consequences of these violations, violators and extenuating as well as aggravating circumstances”.

In addition, Point D, Clause 1, Article 14 of Decree 128 specifies the acts of tax evasion, including: “Overstatement of the quantity or categories of processed products for exports, exports of an export processing enterprise; re-exported goods”. However, Article 14 of Decree 128 does not specify how much tax difference is to be sanctioned for an act of tax evasion.

According to Dong Nai Customs Department, there should be guidance on determining the inaccurate declaration level, tax difference rate to be sanctioned for tax fraud. The sanction for tax evasion for inaccurate declaration leading tax difference of less than VND2 million (because Article 14 does not exclude the case that the tax difference is less than VND1 million will not be sanctioned) is very tough for enterprises.