According to Official Dispatch No. 2643/TCHQ-GSQL dated June 10, 2024 of the General Department of Customs(GDC) sent to the Ministry of Industry and Trade, in the process of carrying out customs procedures for on-spot import and export specified in Article 35 Decree No. 08/2015/NĐ-CP, customs authorities face challenges related to identifying foreign traders not present in Vietnam.
To implement that regulation, it must be determined that foreign traders meet the condition of not having a presence in Vietnam, then are eligible for on-spot import and export cases. However, legal documents on commerce and foreign trade only stipulate the definition of foreign trader that is not present in Vietnam without instructions on the composition of documents, documents, methods and procedures for identification and inspection, and without stipulating the competent agency responsible for guiding this content, leading to difficulties for the Ministry of Finance (GDC) in guiding the implementation of customs procedures.
The Import-Export Department (the Ministry of Industry and Trade) responded in official dispatch 399/XNK-THCS as follows:
1. The definition of "foreign traders not present in Vietnam" within the scope of management of the Industry and Trade sector
- Clause 5, Article 3 of the Law on Foreign Trade Management stipulates: "Foreign trader without a presence in Vietnam is a foreign trader that does not conduct investment and business activities in Vietnam in the forms prescribed in the Law on investment, commerce and enterprises; does not have a representative office or branch in Vietnam in accordance with the Law on commerce and enterprises."
- Clause 2, Article 3 of Decree No. 90/2007/NĐ-CP stipulates: "Foreign trader without a presence in Vietnam is a foreign trader without direct investment in Vietnam in the forms specified in the Law on investment and Law on commerce; does not have a representative office or branch in Vietnam following the Law on commerce.”
The definition of "foreign traders without presence in Vietnam" within the scope of management of the Industry and Trade sector is only related to regulations on export and import rights, that is, only applies to cases where it is necessary to determine the export or import rights of these subjects, not applicable for other purposes.
2. Regarding determining foreign traders not present in Vietnam according to the provisions of Decree No. 08/2015/ND-CP of the Government
Import-Export Department understands that the GDC uses the definition of "foreign traders not present in Vietnam" stipulated in the Law on Foreign Trade Management and Decree No. 90/2007/NĐ-CP to serve the purposes of Decree No. 08/2015/ND-CP.
However, as analyzed above, the definition stipulated in above regulations, only applies in cases where it is necessary to determine the export and import rights of these subjects, not applicable for any other purposes.
Decree 08/2015/ND-CP is the Decree guiding the Customs Law. Therefore, for problems arising related to the identification of foreign organizations and individuals not present in Vietnam according to the provisions of Decree No. 08/2015/ND-CP, the Ministry of Industry and Trade requests GDC (who is in charge of drafting Decree 08/2015/NĐ-CP) based on functions, tasks and management requirements to research and clarify the connotation of the definition of "foreign organizations and individuals without presence in Vietnam" according to customs law to guide businesses on implementation.
Therefore, there is currently no process to determine foreign trader without presence in Vietnam and we need to wait for the General Department of Customs to guide the process.
Please kindly refter to the attachted file 2643_TCHQ-GSQL:
https:/drive.google.com/file/d/14P54URdB7nYxCqsMTQ6SEVqDIwkgHQRn/view?usp=drive_link
Please kindly refter to the attachted file 399 XNK-THCS:
https://drive.google.com/file/d/1EE__Q8ZIaN6etAd_sh2xDBTgbfl3IchU/view?usp=drive_link