No. 60. Development of the legislative rules on customs payments
Goltsblat BLP advises that Federal Law of 24 July 2009 No. 207-FZ “On Amendments to the Customs Code of the Russian Federation” (“the Federal Law”) is to come into effect on 1 October 2009. The main purpose of the amendments is to broaden the customs authorities’ powers with respect to payment and recovery of customs payments.
The Federal Law establishes joint and several liability of the declarant and the customs broker for making customs payments. The customs authority can lodge a claim for payment against both the declarant and the customs broker at the same time or against just one of them, enjoying creditor’s rights in accordance with the Civil Code of the Russian Federation.
Termination of the obligation to pay customs duties and taxes on the death of an individual or liquidation of an organisation due to make such payments does not entail termination of the payment obligation for persons bearing joint and several liability with them.
The amendments regulate the specifics of payment of customs duties, taxes and penalties owed by an individual recognised by a court as a missing person or as legally incompetent.
It has been established that customs payments relating to imports should be made no later than the day the customs declaration is submitted. If the customs declaration is not submitted on time, the period for making customs payments runs from the final deadline for submitting the customs declaration.
A report on expenditure of advance payments will be provided at the payer’s request for a maximum of the three previous years. For customs purposes, the same maximum sum for a single bank guarantee and a unified maximum sum for all simultaneously effective bank guarantees have been established for a bank and its branches. Insurance is excluded from the possible ways to secure customs payments.
The procedure for recovering customs payments has been changed somewhat. A demand for customs payments is sent to the taxpayer within 10 days of non-payment or only partial payment being discovered. The customs will not send a demand in the event of execution being levied for the sum of a cash pledge or advance payments. To recover customs payments from a foreign person, the customs will be entitled to demand payment from the guarantor that issued the bank guarantee or the surety or to levy execution on the pledged item without issuing the foreign person with a demand. If violation of the requirements and conditions of customs procedures (customs treatment) entails an obligation to pay customs duty or taxes, a payment demand should be issued within a year of the violation being identified. If there is a change in the obligation to pay customs duties or taxes after the demand is issued, the customs must revoke the original demand within 10 working days of the change and issue an updated one. The adjusted demand must be met within 10 working days of its receipt.
The customs authority that discovers a payment violation with respect to customs duties or taxes is entitled to act as the creditor (beneficiary) even if the pledge agreement with respect to goods or other property, bank guarantee or surety agreement names a different customs authority as the creditor (beneficiary).
The time allowed for the customs to make decision on direct debiting of funds has been extended from 30 to 60 days from the final deadline for meeting a demand for customs payments. Once such a decision has been taken, a cash instruction for direct debiting of funds from the payer’s account must be sent to the bank within one month.
A mechanism has been established to secure execution of a direct debit decision. This involves suspending operations on the bank accounts of the payer of the customs duty or tax (organisation or individual entrepreneur). A decision to suspend operations cannot be taken until a decision on direct debiting has been made and is subject to mandatory execution by the bank. The suspension remains in place until the bank receives a customs authority decision to lift it.
Customs authorities are now entitled to arrest a payer’s assets if it fails to discharge its obligations to pay customs duties, taxes and penalties. Arrest has to be sanctioned by a public prosecutor and is possible provided the customs have sufficient grounds for believing that the payer will take steps to hide itself or conceal its assets. The law does not, however, give any criteria for sufficient grounds. Only assets sufficient and necessary for discharge of the customs duty, tax or penalty payment obligation are subject to arrest.
An additional restriction is introduced on declaring goods for re-import customs treatment. This is possible provided that no natural wear and tear of the goods has occurred during their use (operation). Even so, a change in the state of the goods as a result of natural loss under normal transport and storage conditions is permitted.
The Federal Law also introduces certain other amendments into the Customs Code of the Russian Federation.
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