The summary below was up-to-date at 26 June 2014
See also: One-page summary of key findings of this dispute
Consultations
Complaint by the Philippines.
On 7 February 2008, the Philippines requested consultations with Thailand concerning a number of Thai fiscal and customs measures affecting cigarettes from the Philippines. Such measures include Thailand's customs valuation practices, excise tax, health tax, TV tax, VAT regime, retail licensing requirements and import guarantees imposed upon cigarette importers. The Philippines claims that Thailand administers these measures in a partial and unreasonable manner and thereby violates Article X:3(a) of the GATT 1994.
In addition, the Philippines makes separate claims in respect of various customs valuation measures affecting imports of cigarettes. The Philippines claims that as a result of thse measues, Thailand acts inconsistently with varous provisions of the Customs Valuation Agreement and the interpretative notes to these provisions, as well as paragraphs 1 and 2 of the General Introductory Commentary; and various provisions of Articles II and VII of the GATT 1994. According to the Philippines, Thailand does not use transaction value as the primary basis for customs valuation as required and fails to conform to the sequence of valuation methods mandated by the Customs Valuation Agreement, rather it uses a valuation method with no basis in the Agreement.
The Philippines also claims that Thailand's ad valorem excise tax, health tax and TV tax, on both imported and domestic cigarettes, are inconsistent with Article III:2, first and second sentence and Article X:1 of the GATT 1994 which requires the publication of trade laws and regulations of general application.
The Philippines also claims that Thailand's VAT regime is inconsistent with Articles III:2, first and second sentence, III:4 and X:1 of the GATT 1994.
In addition, the Philippines claims that Thailand's dual license requirement that requires that tobacco and/or cigarette retailers hold separate licenses to sell domestic and imported cigarettes is inconsistent with Article III:4 of the GATT 1994, because it provides less favourable treatment for imported products than for like domestic products.
On 20 February 2008, the European Communities requested to join the consultations.
On 29 September 2008, the Philippines requested the establishment of a panel. At its meeting on 21 October 2008, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 17 November 2008, the DSB established a panel. Australia, the European Communities, Chinese Taipei and the United States reserved their third-party rights. Subsequently, China and India reserved their third-party rights. On 16 February 2009, the panel was composed. On 3 September 2009, the Chairman of the panel informed the DSB that due to the complexity of the dispute, and the administrative and procedural matters involved, the panel is not able to complete its work in six months. The panel expected to issue its final report to the parties in the course of March 2010. On 17 March 2010, the Chairman of the panel informed the DSB that due to procedural delays caused by the administrative matters involved and the complexity of the dispute, the panel now expected to issue its final report to the parties in the course of June 2010.
On 15 November 2010, the panel report was circulated to Members.
The Philippines' claims under the Customs Valuation Agreement
The Philippines claimed that Thai Customs improperly rejected the transaction values of the cigarette entries that were cleared between 11 August 2006 and 13 September 2007 in violation of Articles 1.1 and 1.2(a) of the Customs Valuation Agreement. Under the Customs Valuation Agreement, the main basis for the valuation of imported goods is the transaction value declared by the importer. When Customs questions the declared transaction value, it must follow the procedural rules set out in the Customs Valuation Agreement in examining the circumstances of the transaction between the importer and the exporter and respect the sequential order of valuation methods in using another method to establish the valuation.
Thailand contested the Philippines' claims and claimed that Thai Customs acted consistently with its obligations under the Customs Valuation Agreement in rejecting PM Thailand's declared transaction value. Although the main basis for valuation of goods is the importer's declared transaction value under the Customs Valuation Agreement, in a related-party transaction as was the case here, customs authorities may examine the circumstances of the sale to determine the acceptability of the declared transaction value (i.e. that it was at arms' length). In doing this, however, the customs authority must follow certain procedural obligations set out in Articles 1.1, 1.2(a) and 16 of the Customs Valuation Agreement, including the obligation to give the importer a reasonable opportunity to respond to the customs authority's preliminary consideration. In this regard, Thailand mainly took the position that the burden of establishing that the relationship did not influence the transaction price was on the importer under the Customs Valuation Agreement. According to Thailand, therefore, the decision by its Customs office to reject PM Thailand's (the importer) declared transaction value was consistent with the obligations under the Customs Valuation Agreement because the importer had failed to provide Thai Customs with sufficient information to prove that its relationship with the exporter (PM Philippines) did not influence the transaction price.
The Panel found that the valuation decisions by Thai Customs were inconsistent with both substantive and procedural obligations under, inter alia, Articles 1.1 and 1.2(a), and 16 of the Customs Valuation Agreement. The record at the time of Thai Customs' decision to reject PM Thailand's declared transaction value, showed Thai Customs' explanation that the importer had failed prove that its relationship with PM Philippines did not influence the price. The Panel found this explanation insufficient as a basis for Thai Customs' decision to reject the importer's declared transaction value and to give a different customs value to the transaction. As a result, its final valuation decisions were found to be invalid under the obligations of the Customs Valuation Agreement. Particularly, the Panel also found that Thai Customs failed to “examine” the circumstances of sale in accordance with the obligations under Article 1.2(a).
The Philippines further argued that Thai Customs applied the deductive valuation method inconsistently with the obligations under Articles 5 and 7 in determining the customs value of the cigarettes. The Philippines also submitted that Thailand violated procedural obligations under both Article 10, not to disclose confidential information, and Article 16, to provide an explanation for the determination of the final customs value.
The Panel found that Thailand failed to apply the alternative valuation method it used in this case — the deductive valuation method — in accordance with the principles set forth in Articles 7 and 5. Thailand attempted to justify its application of the deductive valuation method to the cigarettes at issue, but failed to disprove the Philippines' argument that Thai Customs had not consulted the importer for any further relevant information as required under Article 7 of the Customs Valuation Agreement. Nor had Thai Customs deducted certain expenses that should have been deducted in accordance with Article 5 of the Customs Valuation Agreement.
The Philippines' claims under Article III of the GATT 1994
The Philippines also challenged a number of measures imposed on imported cigarettes under the Thai VAT regime. It argued that Thailand determined the tax base (MRSP) for VAT on imported cigarettes in such a way that the VAT on imported cigarettes is in excess of that imposed on like domestic cigarettes, in violation of the first sentence of Article III:2 of the GATT1994. The Philippines further claimed that imported cigarettes are also subject to VAT liability in excess of that applied to like domestic cigarettes, in violation of the first sentence of Article III:2, as the VAT exemption is only given to domestic cigarette resellers. According to the Philippines, the excessive tax liability imposed on the imported cigarette resellers also results in additional administrative requirements for these resellers.
Thailand argued that in deciding the tax base for VAT, it had applied a general methodology in the same manner to both imported and domestic cigarettes. Further, under Thai law, resellers of domestic cigarettes are exempt from a VAT liability and the related administrative requirements. Thailand argued that this exemption given only to resellers of domestic cigarettes did not result in an excess tax as resellers of imported cigarettes receive tax credits for the potential liabilities.
In the specific instances that were at issue in this case, the Panel concluded that Thai Excise had deviated from its general methodology in determining the tax base for VAT for imported cigarettes, while at the same time applying this methodology to domestic cigarettes. This resulted in excess taxation for imported cigarettes in a manner contrary to Article III:2, first sentence of the GATT 1994. Moreover, given the strict standard under Article III:2, first sentence of the GATT 1994, the Panel found that even the mere possibility of imported cigarettes being subject to an internal tax in excess of that which is applied to domestic cigarettes was inconsistent with Thailand's obligations under Article III:2, first sentence. The Panel found therefore that these specific aspects of the Thai VAT regime violated Thailand's obligations under Articles III:2 and III:4 of
สรุปด้านล่างทันสมัยที่ 26 2014 มิถุนายน ดู: สรุปประเด็นสำคัญของข้อโต้แย้งนี้หน้าเดียวให้คำปรึกษากับร้อง โดยฟิลิปปินส์วันที่ 7 2551 กุมภาพันธ์ ฟิลิปปินส์ขอคำปรึกษาจากคุณไทยเกี่ยวกับตัวเลขไทยบัญชีและศุลกากรมาตรการที่ส่งผลกระทบต่อบุหรี่จากฟิลิปปินส์ มาตรการดังกล่าวรวมถึงของไทยปฏิบัติประเมินศุลกากร ภาษีสรรพสามิต ภาษีสุขภาพ ทีวีภาษี VAT ระบอบการปกครอง ข้อกำหนดการอนุญาตให้ขายปลีก และรับประกันคุณภาพนำเข้าที่กำหนดเมื่อผู้นำเข้าบุหรี่ ร้องฟิลิปปินส์ไทยดูแลมาตรการเหล่านี้บางส่วน และ unreasonable และจึงละเมิดบทความ X:3(a) ของปี 1994 แกตต์นอกจากนี้ ทำให้ฟิลิปปินส์แยกอ้างผิดศุลกากรต่าง ๆ มาตรการประเมินผลกระทบต่อการนำเข้าบุหรี่ ร้องฟิลิปปินส์ว่า จาก thse measues ไทยทำหน้าที่ inconsistently with varous บทบัญญัติของข้อตกลงการประเมินศุลกากรและบันทึก interpretative เหล่านี้บทบัญญัติ รวมทั้งย่อหน้า 1 และ 2 ของอรรถกถา Introductory ทั่วไป และบทบัญญัติต่าง ๆ ของบทความ II และ VII ในแกตต์ 1994 ตามฟิลิปปินส์ ไทยใช้ค่าธุรกรรมเป็นพื้นฐานหลักสำหรับศุลกากรการประเมินค่าตามความจำเป็น และไม่สอดคล้องกับลำดับของวิธีการประเมินค่าที่เป็นข้อบังคับตามข้อตกลงการประเมินศุลกากร แต่ ใช้วิธีการประเมินค่ากับไม่มีพื้นฐานในข้อตกลงThe Philippines also claims that Thailand's ad valorem excise tax, health tax and TV tax, on both imported and domestic cigarettes, are inconsistent with Article III:2, first and second sentence and Article X:1 of the GATT 1994 which requires the publication of trade laws and regulations of general application.The Philippines also claims that Thailand's VAT regime is inconsistent with Articles III:2, first and second sentence, III:4 and X:1 of the GATT 1994.In addition, the Philippines claims that Thailand's dual license requirement that requires that tobacco and/or cigarette retailers hold separate licenses to sell domestic and imported cigarettes is inconsistent with Article III:4 of the GATT 1994, because it provides less favourable treatment for imported products than for like domestic products.On 20 February 2008, the European Communities requested to join the consultations.On 29 September 2008, the Philippines requested the establishment of a panel. At its meeting on 21 October 2008, the DSB deferred the establishment of a panel. Panel and Appellate Body proceedingsAt its meeting on 17 November 2008, the DSB established a panel. Australia, the European Communities, Chinese Taipei and the United States reserved their third-party rights. Subsequently, China and India reserved their third-party rights. On 16 February 2009, the panel was composed. On 3 September 2009, the Chairman of the panel informed the DSB that due to the complexity of the dispute, and the administrative and procedural matters involved, the panel is not able to complete its work in six months. The panel expected to issue its final report to the parties in the course of March 2010. On 17 March 2010, the Chairman of the panel informed the DSB that due to procedural delays caused by the administrative matters involved and the complexity of the dispute, the panel now expected to issue its final report to the parties in the course of June 2010.On 15 November 2010, the panel report was circulated to Members.The Philippines' claims under the Customs Valuation AgreementThe Philippines claimed that Thai Customs improperly rejected the transaction values of the cigarette entries that were cleared between 11 August 2006 and 13 September 2007 in violation of Articles 1.1 and 1.2(a) of the Customs Valuation Agreement. Under the Customs Valuation Agreement, the main basis for the valuation of imported goods is the transaction value declared by the importer. When Customs questions the declared transaction value, it must follow the procedural rules set out in the Customs Valuation Agreement in examining the circumstances of the transaction between the importer and the exporter and respect the sequential order of valuation methods in using another method to establish the valuation. Thailand contested the Philippines' claims and claimed that Thai Customs acted consistently with its obligations under the Customs Valuation Agreement in rejecting PM Thailand's declared transaction value. Although the main basis for valuation of goods is the importer's declared transaction value under the Customs Valuation Agreement, in a related-party transaction as was the case here, customs authorities may examine the circumstances of the sale to determine the acceptability of the declared transaction value (i.e. that it was at arms' length). In doing this, however, the customs authority must follow certain procedural obligations set out in Articles 1.1, 1.2(a) and 16 of the Customs Valuation Agreement, including the obligation to give the importer a reasonable opportunity to respond to the customs authority's preliminary consideration. In this regard, Thailand mainly took the position that the burden of establishing that the relationship did not influence the transaction price was on the importer under the Customs Valuation Agreement. According to Thailand, therefore, the decision by its Customs office to reject PM Thailand's (the importer) declared transaction value was consistent with the obligations under the Customs Valuation Agreement because the importer had failed to provide Thai Customs with sufficient information to prove that its relationship with the exporter (PM Philippines) did not influence the transaction price.The Panel found that the valuation decisions by Thai Customs were inconsistent with both substantive and procedural obligations under, inter alia, Articles 1.1 and 1.2(a), and 16 of the Customs Valuation Agreement. The record at the time of Thai Customs' decision to reject PM Thailand's declared transaction value, showed Thai Customs' explanation that the importer had failed prove that its relationship with PM Philippines did not influence the price. The Panel found this explanation insufficient as a basis for Thai Customs' decision to reject the importer's declared transaction value and to give a different customs value to the transaction. As a result, its final valuation decisions were found to be invalid under the obligations of the Customs Valuation Agreement. Particularly, the Panel also found that Thai Customs failed to “examine” the circumstances of sale in accordance with the obligations under Article 1.2(a).The Philippines further argued that Thai Customs applied the deductive valuation method inconsistently with the obligations under Articles 5 and 7 in determining the customs value of the cigarettes. The Philippines also submitted that Thailand violated procedural obligations under both Article 10, not to disclose confidential information, and Article 16, to provide an explanation for the determination of the final customs value. The Panel found that Thailand failed to apply the alternative valuation method it used in this case — the deductive valuation method — in accordance with the principles set forth in Articles 7 and 5. Thailand attempted to justify its application of the deductive valuation method to the cigarettes at issue, but failed to disprove the Philippines' argument that Thai Customs had not consulted the importer for any further relevant information as required under Article 7 of the Customs Valuation Agreement. Nor had Thai Customs deducted certain expenses that should have been deducted in accordance with Article 5 of the Customs Valuation Agreement.
The Philippines' claims under Article III of the GATT 1994
The Philippines also challenged a number of measures imposed on imported cigarettes under the Thai VAT regime. It argued that Thailand determined the tax base (MRSP) for VAT on imported cigarettes in such a way that the VAT on imported cigarettes is in excess of that imposed on like domestic cigarettes, in violation of the first sentence of Article III:2 of the GATT1994. The Philippines further claimed that imported cigarettes are also subject to VAT liability in excess of that applied to like domestic cigarettes, in violation of the first sentence of Article III:2, as the VAT exemption is only given to domestic cigarette resellers. According to the Philippines, the excessive tax liability imposed on the imported cigarette resellers also results in additional administrative requirements for these resellers.
Thailand argued that in deciding the tax base for VAT, it had applied a general methodology in the same manner to both imported and domestic cigarettes. Further, under Thai law, resellers of domestic cigarettes are exempt from a VAT liability and the related administrative requirements. Thailand argued that this exemption given only to resellers of domestic cigarettes did not result in an excess tax as resellers of imported cigarettes receive tax credits for the potential liabilities.
In the specific instances that were at issue in this case, the Panel concluded that Thai Excise had deviated from its general methodology in determining the tax base for VAT for imported cigarettes, while at the same time applying this methodology to domestic cigarettes. This resulted in excess taxation for imported cigarettes in a manner contrary to Article III:2, first sentence of the GATT 1994. Moreover, given the strict standard under Article III:2, first sentence of the GATT 1994, the Panel found that even the mere possibility of imported cigarettes being subject to an internal tax in excess of that which is applied to domestic cigarettes was inconsistent with Thailand's obligations under Article III:2, first sentence. The Panel found therefore that these specific aspects of the Thai VAT regime violated Thailand's obligations under Articles III:2 and III:4 of
การแปล กรุณารอสักครู่..
