Customs aspects in import-export transactions

Main new features of the new Customs Code

The new Community Customs Code established by EU Reg. 9 October 2013, No 952It establishes and defines the legislation applicable to imports and exports of goods between the Community and third countries. It has also been brought into line with the International Convention on the Simplification and Harmonisation of Customs Procedures and the Charter of Fundamental Rights of the European Union.

The measure contains a number of innovations, compared to the previous Reg. No. 2913/1992, including the introduction of computerisation of numerous procedures and the streamlining of control systems.

The customs debt

The notion of customs debt is given by the Community Customs Code which defines it as the obligation of a natural or legal person to pay the amount of import and/or export duties, which are of course applicable according to the Community provisions laid down for a given good.

A preliminary distinction must be made between the concept of legal customs relationship from the actual customs debt. This is because the former does not entail, per se and when the procedure is followed, the obligation to pay customs duties, but merely refers to that set of obligations that the holder of the goods must assume under national and Community law.

As in all civil obligations, a customs tax obligation arises between two (or more) parties, the identification of which is crucial to establish against whom the tax claim arises.

In the customs relationship, two categories of subjects are necessarily distinguished:

• the active subject (the state through the Customs Agency), which has the right to demand the tax benefit, and which is therefore the state of whose sovereign power the customs tax, by its essence and economic purposes, is a typical manifestation;
• the taxable person (importer or exporter), the person who is liable to pay the customs debt, i.e. the payment of import or export duties; it is identified in the owner of the goods. From this follows the relativity of the rights of obligation since the owner can only require performance against the person of the obligor who must be determined or determinable at the time the obligation arises. 

The operative event for the customs tax liability is thus the submission of the written declaration for the release for free circulation of goods subject to import duties; the placing of those goods under temporary importation with partial relief from duties.

In this case, the obligation arises at the moment of acceptance of the customs declaration concerning the relevant transaction.

Structure of the Integrated Tariff of the European Communities

An analysis of the customs classification of goods can certainly not fail to also address the Integrated Tariff of the European Communities (TARIC). The reason for this lies in the fact that the tariff in question is based precisely on the combined nomenclature discussed at length at the beginning of this chapter. With regard to the objectives, it should be noted that the TARIC (TARIC Consultation) has the function of optimally collecting, exchanging and publishing information on the Community's external trade statistics. Not surprisingly, its purpose is to make known all the provisions of the Community regulations that apply when a product is imported/exported from the customs territory as defined in Art. 4 of the EU Reg. No. 952/2013 (CDU). It is published annually by theofficial publications office of the ECHowever, changes in EU legislation are recorded in a continuously updated database and transmitted electronically to all Member States. Since TARIC has no legal value, in the event of a dispute, reference must be made to the individual regulations and normative provisions that constitute its legally relevant basis. In order to outline its structure, it is briefly reiterated that it is based on the Combined Nomenclature, the code of which has eight digits and fully reflects the Harmonised System, which has four digits. 

Its coding therefore consists of ten charactersIt also identifies the type of duty applied and can be supplemented with an additional four digits constituting the additional code. With regard to the application of TARIC, it should be noted that, for imports, it is always used. On the other hand, for export transactions and intra-Community trade, the eight-digit code that makes up the Combined Nomenclature may be used.

In conclusion, it is recalled that the Combined Nomenclature (CN) constitutes the basis for the declaration of goods:

• import or export, or
• when subject to intra-Union trade statistics.

This determines what rate of customs duty applies and how the goods are treated for statistical purposes. The CN is therefore a vital working tool for businesses and customs administrations in the Member States.
The Combined Nomenclature (CN) was established by Council Regulation (EEC) No. 2658/1987 on the tariff and statistical nomenclature and on the Common Customs Tariff. It is updated annually and is published as an implementing regulation of the Commission in the Official Journal of the European UnionL series.
The latest version is now available as Commission Implementing Regulation (EU) 2018/1602 in the OJEUL 273 of 31 October 2018 and shall apply from 1 January 2019.

The customs clearance procedure

La normal customs procedureapplicable to the generality of traders, allows goods to be assigned one of the customs procedures permitted by Community legislation and to determine the customs duties to be paid and the obligations arising therefrom. It can be schematised as follows:

• presentation to customs of the goods and the customs declaration;
• registration of the declaration;
• payment of fees;
• control of the declaration and the documents attached to it;
• possible physical verification of the goods;
• release of goods.

In addition to the customs areas, the operation can also be carried out at the company's premises, with payment of 'out-of-circuit' allowances.

The Binding Tariff Information

Since the goods classification system not infrequently presents difficulties, especially for some products belonging to new technologies or derived products, as in the case of chemicals, for example, the economic operator can obtain from theCustoms Authoritythe allocation of the relevant code and thus avoid the imposition of administrative penalties.
It is inferred, therefore, that the purpose of theBinding Tariff Informationhereinafter referred to as - ITV - is to overcome uncertainties, to ensure accurate tariff indication and to facilitate the task of traders in the application of complex customs legislation.
The ways in which the interested party can apply for a BTI will now be explained, and in this regard, the EU provisions of the UNHRC relevant to the subject matter under consideration will be taken into account.
The BTI is valid for three years from the date of its issue, which is free of charge e stamp-freeexcept that the costs incurred by the administration for analyses or expert opinions on samples may be charged to the applicant.

Form and content of customs declaration

All customs operations must be preceded by a declaration to be made with the observance of certain forms and rules. It should be emphasised that this manifestation of will is productive of legally relevant effects between the parties, capable of giving rise to certain obligations on the part of the taxable person, which differ according to the customs procedure chosen. L'procedure procedure that takes place at the territorially competent customs begins, in fact, with the lodging of the declaration.
First of all, it should be reiterated that the declarant may be either the owner of the goods himself or his representative. 
We can therefore identify the following subjects:

• the owner of the goods;
• the owner's representative which can be:
  • an employee acting in his own name and on behalf of the owner (indirect representation), endowed with special powers and not registered in any register. He therefore operates under the responsibility of the owner of the goods.
  • The customs agent acting in the name and on behalf of the principal (direct representation).

The declaration must contain the following information:

• identity and domicile of the declarant and the owner of the goods;
• place of origin, provenance and destination;
• number and species of packages;
• full description: quality, quantity, trade name, customs classification;
• value of goods;
• exit customs, if different from the issuing customs.

It is also up to the declarant to indicate the amount of the individual taxes charged on the goods and the amount to be paid or guaranteed.
The Italian Customs Administration recently prepared theEDI (Electronic Data Interchange) for the transmission of customs declarations.

The customs value and the taxable amount for duties

Of particular importance for the assessment of the tax and the application of the economic rules is, in addition to the determination of origin, the determination of the value of the goods declared at import.
The general rule under theArticle 70 of the Customs Code concerning the customs value of imported goods states, for the purpose of calculating duties, that the customs value corresponds to the transitional value, i.e. the price actually paid or payable for the goods.
Notwithstanding the above, the same article provides in the following paragraphs for a number of evaluation criteria. A central point is that the determination of the price must be made according to the arm's length bargaining rule. In fact, if the customs authority ascertains and, therefore, proves that the invoice value is untrue, it can dispute this amount and, therefore, attribute the appropriate value for the calculation of duties.
For the purposes of calculating the taxable amount, the terms of delivery adopted by the parties and indicated on the invoice are important. These, in fact, represent cost elements as services related to international trade.

Simplified Customs Procedures

There has been some discussion of customs requirements whose regulation inevitably affects trade between the EU and third countries. 
It is now proposed to analyse the three categories of simplified procedures prepared by the EU legislator and, in fact, not yet adequately known by the business world.

Customs declarations and simplified declarations

Generally speaking, the new EU customs legislation provides for declarations standard and simplified declarations. 

• New 'normal at authorised places' declaration procedure (Art. 139 and 162 OCT), replacing the customs clearance procedure under the previous Code.
• Normal declaration (Arts. 162-165 CDU):
  • the need for such declarations to contain all the necessary data and information required for the scheme in question remains unchanged;
  • The management of the accompanying documents required for the application of the provisions governing the procedure for which the goods are declared changes considerably: their compulsory attachment to the declaration is no longer required, their possession by the declarant being sufficient, who will only have to provide them to the customs authority if the EU rules so require or in the event of a control.
• Simplified declaration (Arts. 166-167 CDU, Art. 145 RD, Arts. 223-224 RE, Art. 16 GDR);
• Completion of declaration for goods classified in different tariff subheadings (Art. 177 UNCRC, Art. 228 IR).
• Centralised customs clearance (Art. 179 CDU, Art. 149 RD, Art. 229-232 RE, Art. 18-20 GDR): 
• Entry in the declarant's records (Art. 39 and 182 CDU, Art. 146-150 RD, Art. 233-235 IR, Art. 21 GDR).

Import/Export

The application must be submitted in relation to the place where the applicant's main customs accounts are held.
If it is submitted by a Customs Assistance Centre (CAD), it must also be addressed to an inter-regional/regional/ inter-provincial Directorate (which initiates the enquiry). In this, and in all other cases where the application is submitted by persons other than authorisation holders, it must be accompanied by elements justifying the use of the place by reason of the volume of operations to be carried out and excluding its occasional nature.
The procedure for granting site approval must be concluded within 60 days from the date of submission of the application.
As of 1 May 2016, this is the new 'normal at authorised places' declaration procedure adopted by Customs.

Export

For the presentation at a place other than customs of EU goods intended for export, the place must be suitable for carrying out customs controls.

The application for approval of the export location can be produced by:

• declarants who continuously carry out export operations at the place to be approved, provided they have the legal title to use the place for the presentation of the goods;
• owners of customs warehouses and temporary storage facilities, companies operating logistical hubs that make space available to declarants for carrying out customs controls.