DISPUTES REGARDING ADJUSTMENT THE CUSTOMS VALUE OF GOODS
The focus of the import business is on purchasing goods from abroad at the best prices. Prices for goods or commercial vehicles, which are fixed by the declarant, become an “apple of discord” in legal relations with customs officials at customs clearance of goods or commercial vehicles.
As practice shows, in recent years in Ukraine the number of cases of appeals against decisions on adjusting the customs value of goods and refusal cards in the customs declaration, customs clearance or release of goods, commercial vehicles has increased rapidly.
The most common situation is when a customs lawyer is approached by a client who intended to clear goods or a vehicle, submitted available documents for customs clearance by the first (basic) method (at the contract price), but the customs authority decided to adjust the customs value by the sixth method and the card of refusal, which necessitated additional payment of customs duties.
In which cases does the customs have the right to adjust the customs value?
Part 6 of Article 54 of the Customs Code of Ukraine provides grounds for refusal of customs clearance of goods at customs value, which is declared by the declarant (the person authorized by him).
Attention!!! Refusal may take place only if there are reasonable grounds to believe that incomplete and / or inaccurate information about the customs value of goods is declared, including incorrectly determined customs value of goods.
The grounds can be divided into the following:
– incorrect calculation of the customs value by the declarant or his authorized person (paragraph 1 of part 6 of Article 54 of the Customs Code of Ukraine);
– failure of the declarant or his authorized person to submit documents in accordance with the list and in accordance with the conditions specified in parts 2-4 of Article 53 of the Customs Code of Ukraine, or lack of these documents all information confirming numerical values of customs value of goods or price information, that has actually been paid or is payable for these goods;
– non-compliance of the method chosen by the declarant or his authorized person to determine the customs value of the goods with the conditions specified in Chapter 9 of the Customs Code of Ukraine;
– receipt by the customs authority of documented official information of the customs authorities of other countries on the inaccuracy of the declared customs value.
What documents confirm the customs value?
The list of documents confirming the customs value is defined in Article 53 of the Customs Code of Ukraine, namely:
– declaration of customs value and documents confirming the numerical values of the components of customs value, on the basis of which the calculation of customs value was carried out;
– foreign trade agreement (contract) or a document that replaces it, and annexes to it, if any;
– invoice or proforma invoice (if the goods are not the object of purchase and sale);
– if the invoice is paid, – bank payment documents related to the appraised goods;
– if available – other payment and / or accounting documents confirming the value of the goods and containing details necessary to identify the imported goods;
– transport (transportation) documents, if under the terms of delivery transportation costs are not included in the value of goods, as well as documents containing information about the cost of transportation of the assessed goods;
– license for import of goods, if the import of goods is subject to licensing;
– if insurance was provided, – insurance documents, as well as documents containing information on the cost of insurance.
Provided that the above documents contain discrepancies, signs of forgery, incomplete information on the numerical values of the customs value, the customs authority has the right to request in writing additional documents, the list of which is defined in Part 3 of Article 53 of the Customs Code.
The deadline for the declarant (authorized person) to submit additional documents is 10 calendar days.
How to identify a situation when the decision to adjust the customs value and the card of refusals to accept the customs declaration are illegal?
First, it is necessary to exclude the presence of discrepancies, incomplete information, signs of forgery in the documents submitted for customs clearance. However, it should be borne in mind that the values are such differences that have affected the ability of the customs authority to determine the numerical values of customs value in general or its components (brokerage services, insurance, labeling, etc.). The number of components of the customs value may vary depending on the terms of delivery determined by the declarant (authorized person).
Secondly, it is necessary to find out whether the declarant has been consulted by the customs authority.
According to Part 4 of Article 57 of the Customs Code of Ukraine, the application of secondary methods is preceded by a procedure of consultations between the customs authority and the declarant (authorized person) to determine the basis of value in accordance with Articles 59 and 60 of the CC of Ukraine.
Consultations cannot be formally limited to the request of the customs authority to provide additional documents, because during such consultations the customs authority and the declarant (authorized person) may exchange information available to each of them (subject to confidentiality requirements) in order to settlement of problematic issues of customs valuation.
Third, it is necessary to analyze the form and content of the decision to adjust the customs value, which was made by the customs authority
Regarding the form of the decision on adjustment of customs value. Requirements for the form of this decision are regulated by the order of the Ministry of Finance of Ukraine № 598 24.05.2012 “On approval of the form of the decision on adjustment of customs value of goods, Rules for filling out the decision on adjustment of customs value of goods and the List of additional components to the contract price”. The decision to adjust the customs value of goods must contain information on the results of the consultation, as well as the reasons why the methods of determining the customs value of goods at the contract price for identical, similar goods cannot be used (for example, no information on the value of identical or similar goods).
Regarding the application of the backup method. Chapter 9 of the Customs Code of Ukraine establishes methods for determining the customs value. Methods of determining the customs value are divided into two groups: primary and secondary. The main method is the method by which the customs value is determined at the contract price.
Secondary methods include the following: at the contract price for identical goods; at the contract price for similar goods; calculation based on deduction of value; calculation based on value added (calculated value); reserve.
According to Part 5 of this Article of the Customs Code of Ukraine in case of impossibility to determine the customs value of goods in accordance with Articles 59 and 60 of the Customs Code of Ukraine as a basis for determining it may be taken or the price at which identical or similar goods were sold in Ukraine. the seller to the buyer in accordance with Article 62 of this Code, or the value of goods calculated in accordance with Article 63 of this Code.
Attention!!! Each subsequent method is used if the customs value of goods cannot be determined by applying the previous method (Part 6 of Article 57 of the Customs Code of Ukraine).
How to protect your rights?
As of today, there are two ways in Ukraine to appeal against the adjustment the customs value of goods:
1) appeal of the declarant to the customs authority.
2) the declarant’s appeal to the court.
The declarant’s appeal to the customs authority.
According to Part 8 of Article 55 of the Customs Code of Ukraine within 80 days from the date of release of goods the declarant or his authorized person may provide the customs authority with additional documents to confirm the declared customs value of the declared goods. The application to the customs authority shall be submitted in writing together with additional documents.
The deadline for consideration of additional documents by the customs authority is 5 working days. Based on the results of consideration of additional documents, the customs authority shall issue a written decision on recognition of the declared customs value and cancel the decision on adjustment of the declared customs value or provide a reasoned refusal to recognize the declared customs value taking into account additional documents.
If the answer was not provided in due time, the customs value is considered to be determined correctly and the customs authority cancels the decision to adjust the declared customs value, and the provided financial guarantee is returned (released) in the manner and terms specified by the Customs Code of Ukraine.
Despite the declarative nature of the existing legal provisions, the customs value is usually not established on the basis of additional documents submitted, and the rights of the declarant (or his legal representative) have to be defended in court.
The declarant’s appeal to the court.
The main remarks about going to court:
– Jurisdiction. According to Article 19 of the Code of Administrative Procedure of Ukraine, the jurisdiction of administrative courts extends to cases in public law disputes, in particular in disputes of individuals with the subject of power to appeal its decisions, actions or omissions, unless such disputes are otherwise provided by law. the procedure of court proceedings.
According to Part 1 of Article 25 of the Code of Administrative Procedure of Ukraine, administrative cases are generally decided at the choice of the plaintiff by the administrative court at the registered place of residence of the plaintiff or by the administrative court at the location of the defendant, except as established by CASU.
– The deadline for applying to the court is six months from the date of the decision to correct the refusal to accept the customs declaration, customs clearance or release of goods, commercial vehicles.
– Requirements. When preparing to apply to the court, it should be borne in mind that to appeal the adjustment of customs value should simultaneously ask the court to declare illegal and cancel the decision to adjust the customs value of goods and card refusal to accept the customs declaration, customs clearance or release of goods, commercial vehicles .
– The price of the claim is the difference between the customs duties payable in accordance with the customs value calculated by the declarant and the customs value calculated by the customs authority.
The procedure for appealing the adjustment of customs value in court is a complex process that requires a detailed analysis of the evidence and justification of the client’s position, so we advise you to turn to professionals to effectively protect legal rights and interests.