When banks liquidate collateral as raw materials for export without notifying the customs authority, will the enterprise or banks be sanctioned for administrative sanctions and pay tax?

Binh Phuoc Customs officers inspect import and export goods. Photo: N.H

During the implementation of the Government’s Decree No. 126/2020 / ND-CP detailing a number of articles of the Law on Tax Administration, Binh Phuoc Customs Department faced a number of problems.

Specifically, Article 17 of the Decree provides for tax assessment in cases where the enterprise mortgages imported goods that are exempt from tax or non-taxable goods as collateral for a loan at a credit institution and that credit institution handles the collateral to recover debts, but the enterprise has not made a new customs declaration and fully paid taxes according to the provisions of the Customs law.

Binh Phuoc Customs Department said that this provision leads to problems with tax liability in two cases. The first case is the taxpayer had a mortgage for loans arising before the issuing date of Decree 126 and the handling of the collateral at the effective time of Decree 126. The second case is the credit institution must handle the collateral in accordance with the law to recover debts before the effective date of Decree 126.

Specifically, at Binh Phuoc Customs Department, there is a case where an enterprise importing cashew nuts under the customs regime of export production mortgaged raw cashew nuts and finished cashew kernels to credit institutions. However, the enterprise’s production and business activities suffered losses, so credit institutions applied the credit law to liquidate the collateral, but the enterprises did not notify the customs authority (did not carry out the procedures for changing the use purpose), nor comply with regulations on specialized policies (state inspection for food safety).

In this case, Binh Phuoc Customs Department raised a question that when the case is taken to court for the act of arbitrarily changing the purpose of using goods subject to tax exemption, will the enterprise or the credit institution be responsible, which has a great significance on determining the violation to impose administrative sanctions.

In addition, Article 17 of Decree 126 also stipulates the tax assessment for the case that the taxpayer makes incorrect reports to the customs authority.

Accordingly, if at the time the enterprise makes an additional declaration beyond the prescribed time limit, the amount of exempted tax is increased, the customs authority shall handle the tax.

According to Binh Phuoc Customs Department, this provision raises problems such as: the tax assessment is made at the time when the enterprise makes additional declaration of the finalization report, but after the inspection at the taxpayer's office is conducted, the data in the additional declaration of the finalization report is inaccurate.

As a result, the tax amount assessed at the time of the additional declaration is lower than the tax amount assessed at the inspection time at the taxpayer’s office.

Therefore, Binh Phuoc Customs Department raised a question whether the refund of tax and fine is made for the enterprise or not?

Binh Phuoc Customs Department also pointed out that, Article 73 and Article 74 of the Law on Tax Administration and Article 22 of Decree 126 provide for the classification of tax refund dossiers and the inspection place of tax refund dossiers in case of inspection before tax refund at the offices of the taxpayers or relevant entities.

Accordingly, this provision raises a problem that if the taxpayer no longer operates at the registered address but has a written request for tax refund, whether the taxpayer is eligible for tax refund or not. Because in this case, procedures for inspection at taxpayers' offices are impossible.

The above problems have been reported to the General Department of Customs by Binh Phuoc Customs Department for specific instructions.