US embassy cable - 05BANGKOK1427

UNCLAS SECTION 01 OF 02 BANGKOK 001427 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR EB AND EAP/BCLTV 
 
COMMERCE FOR ITA:JKELLY 
 
STATE PLEASE PASS TO USTR 
 
E.O. 12958: N/A 
TAGS: ETRD, ECON, TH, GATT, WTRO, Customs Issues 
SUBJECT: Thailand: Customs Valuation Issues 
 
REF: A) KELLY/VAUGHN EMAIL 2/1/05 B) KELLY/VAUGHN EMAIL 
 
1/22/05 
 
-- (U) THE FOLLOWING MESSAGE IS SENSITIVE BUT UNCLASSIFIED 
PLEASE PROTECT ACCORDINGLY -- 
 
1. (SBU) Summary:  On February 18, Embassy representatives 
met with the Customs Department's Mr. Watana U-Thasoonthorn, 
Director, Customs Procedures and Valuation Directorate. 
Noting that some customs officers continue to assign 
arbitrary values to data on carrier media (CD) imports, 
Watana agreed to resend instructions to the port customs 
bureaus that when no declared value for the data is listed, 
only the carrier media should be assessed customs duties.  He 
explained there are no plans to adopt a GATT (General 
Agreement on Trade and Tariffs) decision that only carrier 
media should be assessed customs duties, but explained Royal 
Thai Government (RTG) practice is to continue to assess only 
the carrier media when no value for the data is listed. 
Econoff raised concerns that Thailand's practice of using the 
retail price of an automobile in the country of manufacture 
for valuation purposes is inconsistent with its WTO 
commitments.  Watana countered that while this is true for 
customs valuation, it is permissible for determining a "test 
value."  We welcome further information from Washington to 
arm us for continued dialogue with Customs on its auto 
valuation practices.  End Summary. 
 
2.  (SBU) Econoff raised the issue of software valuation 
related in Ref A, noting that while Thai Customs has advised 
that its officers at the port of entry are prohibited from 
assessing tax and duties on software based on an arbitrary 
value (such as USD 20 per CD), reports are that this 
continues to happen.  Director Watana explained that officers 
have been told to assess the carrier media (the physical CD) 
and the software or data on the CD separately, according to 
the values reflected on the invoice provided by the importer. 
He explained that the problem arises when the importer 
provides a value for the disc, but not for the software on 
the disc; Watana explained that in such a case the official 
is supposed to assess the carrier media alone.  He said these 
instructions had been sent in a memo to the Customs Bureaus 
at the ports a year ago.  Noting the continued difficulties 
importers experience, Watana promised to resend the memo to 
Customs port authorities. 
 
3.  (SBU) Addressing the longer-term issue of adopting the 
1984 GATT (General Agreement on Trade and Tariffs) decision 
4.1 on carrier media (which states that customs duties should 
be applied only to the value of the carrier media rather than 
the value of the "data or instructions" contained thereon), 
Watana clarified the Royal Thai Government (RTG) position. 
He said that the RTG had no plans to adopt decision 4.1 at 
this time, noting that there was no consensus among countries 
and that no other ASEAN country had formally adopted the GATT 
decision.  However, he noted that while RTG policy was to 
continue to apply separate customs duties on the carrier 
media and the information it contained, that since there is 
currently no rational method to determine the value of the 
data when no value is reflected on the invoice, RTG practice 
in those instances is to assess duties only on the carrier 
media in keeping with decision 4.1. 
 
4.  (SBU) Econoff then broached the issue of Thailand's new 
guidelines in determining valuation for automobile imports 
when the customs officer has doubts about the declared price 
on the invoice.  According to the new guidelines, the 
declared value is compared with the value of identical goods 
previously accepted by Customs (reference pricing).  When the 
declared value is the same or higher than the previously 
accepted customs value within a 30-day period, the declared 
value is used as a customs value.  Where value of identical 
or similar goods previously accepted by customs is not 
available or the declared value is lower than the previously 
accepted customs value within the 30-day period, the declared 
value will be compared with the test value. 
 
5.  (SBU) Watana explained that the test value is determined 
by a formula that utilizes the retail price in the 
manufacturing country.  Econoff raised congressional concerns 
(ref B) that Article 7.2 (c) of the WTO Agreement on Customs 
Valuation expressly forbids reference for valuation purposes 
to the price in the country of exportation or manufacture. 
While Watana agreed that is the case for the customs 
valuation, he asserted that determining the "test value" by 
referencing the retail price in the manufacturing country is 
NOT prohibited by article 7.2. 
 
6.  (SBU) Comment: While the RTG continues to use GATT 
decision 4.1 on carrier media in practice, there are no plans 
to implement the legislative changes needed to formally adopt 
4.1 as the government does not want to tie its hands should 
other countries determine a rational method to assess data 
contained on carrier media.  Customs continues to assert that 
its auto valuation methodology is consistent with its WTO 
commitments.  We welcome further evidence from Washington 
agencies to arm us in our discussions with Thai Customs on 
this issue.  End Comment. 
 
Boyce