US embassy cable - 03HANOI483

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