What does the new law “On Customs Regulation in the Russian Federation” have in store for foreign trade participants?

The bill contains a number of new concepts relating, for example, to preliminary decisions (PR) on the country of origin and on the classification of goods, and makes changes to already existing rules. Thus, it has been established that a preliminary decision on the classification of goods is made within 60 calendar days from the date of registration of the application by the authorized customs authority and is valid for 5 years from the date of its adoption . Now these terms are 90 days and 3 years, respectively.

The procedure for obtaining solutions is also described. It has been established that they are required for each item of goods imported into the customs territory of the EAEU from a specific country. They must be issued no later than 60 calendar days from the date of registration of the application for a preliminary decision. The draft provides a procedure for obtaining PR for the application of methods for determining the customs value of imported goods . It has been established that, upon the application of an interested person, the Federal Customs Service of Russia makes such a decision no later than 30 calendar days from the date of registration of the application. Currently, participants in foreign economic activity cannot obtain these preliminary decisions.

The deadline for submitting a report on the expenditure of funds made as advance payments has been reduced to 20 calendar days . Currently, 30 days are allotted for this. It has been established that the return of advance payments when the person who contributed these funds cedes the right to demand their return to another person is not made.

There is no such direct rule in the current law. Therefore, regarding the possibility of returning customs payments to the assignee on the basis of an agreement for the assignment of the right of claim, there is now legal uncertainty, leading to various judicial practices.

Consideration of an application for the return of advance payments, making a decision on it and the return itself cannot exceed 10 working days from the day following the day the application was received by the customs authority. The old law does not stipulate the period for consideration of an application for the return of advance payments; it usually takes a month.

We return funds

The procedure for the return of overpaid or overcharged customs duties has been significantly changed . It is established that it is carried out only in the form of offset against advance payments no later than 5 working days from the day following the day of discovery of the fact of excessive payment or collection. Such a day will be considered the day of registration by the customs authority: adjustments to the declaration of goods (DT) or customs receipt order; full DT; another document confirming the fact of excessive payment (collection).

To offset these funds, the foreign trade participant will not need to write and submit an application with the necessary set of documents. However, to return the money to your account, you will have to additionally go through the procedure for returning advance payments.

At the same time, the legislator divided the concepts of “excessively collected customs duties” and “excessively paid customs duties . Their collection is the responsibility of the customs authorities. It has been established that interest is not charged on overpaid payments . In relation to excessively collected funds, an automatic procedure is introduced to notify the payer of accrued interest on their amount. It must be sent no later than 10 working days from the day following the day of actual offset of the amounts of excessively collected customs and other payments. Accordingly, it will not be possible to claim payment of interest for the use of overpaid payments. However, it is not clear why a distinction was made between collected and paid payments.

Refund of the cash deposit , including the balance, will also be carried out only in the form of offset against advance payments on the personal account of the person who deposited it no later than 10 business days from the day following the day the relevant circumstances occurred. The offset will be carried out without the person making it submitting an application.

customs control

Control is especially important in such an area as customs records management. What does N 311-FZ “On customs regulation in the Russian Federation” say about exercising control over the entire system under consideration?

The law states that control must be carried out by the relevant customs authorities on the basis of the principles already given in the law in question. For the sake of efficiency, customs authorities may cooperate with certain executive authorities. The bill also talks about possible risks, the risk management system and the procedure for detaining undeclared goods.

They will charge you differently

There are significant changes in the chapter devoted to the collection of customs duties and taxes . Thus, instead of the concept of “demand for payment of customs duties,” new concepts are introduced. The notification (clarification to the notification) about the payment of customs duties, special, anti-dumping, countervailing duties, interest and penalties will constitute a notification to the payer and the person bearing a joint obligation about unpaid customs duties, special, anti-dumping, countervailing duties, interest and penalties.

A clarification to the notification will be necessarily sent to the foreign trade participant in the event of a change in the amount of calculated and payable customs duties, special, anti-dumping, countervailing duties, interest and penalties specified in the notification (clarification to it). 15 working days are allotted for the execution of the notification from the date of its receipt by the payer (the person bearing joint and several liability), and 5 working days for clarification of it. Currently, 20 working days are given for execution.

When the customs authority sends a notification (clarification to it) by registered mail, the day of receipt is considered to be the 6th day following the day the letter was sent. In addition, it has been established that if the funds of the liquidated organization are not enough to fulfill in full the obligation to pay customs duties, taxes and other payments, the remaining debt and (or) the obligation to pay must be repaid (fulfilled) by the founders (participants) of the organization.

This norm, in fact, duplicates Article 49 of the Tax Code of the Russian Federation, on the application of which there was a separate instruction of the Plenum of the Supreme Arbitration Court of the Russian Federation. In accordance with it, it was decided to supplement this rule of law with the condition that the liability of the founders (participants) should be determined within the limits and procedure established by the legislation of the Russian Federation, and then only in the case when, in accordance with civil law, the founders (participants) of a liquidated legal entity are liable for its debts subsidiary liability.

If a penalty is charged

Let us note that the law has introduced a special article devoted to the specifics of fulfilling, during the reorganization of a legal entity, the obligation to pay customs duties, taxes and other payments, the collection of which is entrusted to the customs authorities. The cases when a penalty is not subject to accrual have also . Let us recall that penalties are recognized as funds that the payer (a person bearing a joint and several obligation) is obliged to pay in the event of non-fulfillment or improper fulfillment of the obligation to pay customs duties within the time limits established by law.

The draft establishes : if the obligation to pay customs duties upon release of goods before completion of the verification of customs, other documents and (or) information is secured by a cash deposit, then upon the adoption of the final decision, a fine is not subject to accrual based on the amount of the cash deposit. In addition, when a decision on the classification of goods is canceled and a new decision is made by the customs authority, a fine is also not charged.

According to the authors, these changes should eliminate the long-existing injustice when participants in foreign trade activities must pay penalties even when depositing their own funds as a cash deposit against a customs receipt. Also, penalties were payable if the customs authority canceled its own decision on classification.

The regulation of appealing decisions, actions (inaction) of customs authorities or their officials will also change. The main novelty here is that it will be possible to appeal this in court only after an appeal to a higher customs authority. This introduces a mandatory pre-trial appeal procedure . True, in relation to decisions, actions (inaction) of customs authorities or their officials, taken based on the results of control after the release of goods, it will begin to be applied from July 1, 2019, and in relation to other decisions, actions (inaction) - from January 1, 2021.

The draft establishes that a complaint must be considered by a higher customs authority no later than 25 working days after the day following the day it was received by the customs authority authorized to consider the complaint. The review period may be extended, but not more than 25 working days.

Objectives of the Federal Law

The first article of the Federal Law “On Customs Regulation in the Russian Federation” reveals the main goals of the bill. In particular, it is worth highlighting:

• ensuring the implementation by the Russian state of various international agreements, mainly constituting the regulatory framework of the EurAsEC - Customs Union;
• regulation of Russia's economic security in the field of foreign trade;
• modernization of the type of public administration in the customs sector;
• control over compliance with the legitimate interests and rights of persons working in the field of import of products into the territory of the Russian Federation and export of products from the country;
• creation of conditions allowing for the qualitative development of foreign economic activity and foreign trade functioning.

What is the subject of the Federal Law “On Customs Regulation in the Russian Federation”? Here it is worth highlighting the regulation of relations regarding the import and export of goods from the Russian Federation, the transportation of products in the country under customs control, the determination of the powers of government bodies, as well as the rights and obligations of persons one way or another connected with customs law.

Will be performed later

A rule has also been introduced that allows customs authorities, whose decisions, actions (inactions) are being appealed, to decide to suspend the execution of the appealed decision aimed at collecting customs duties based on the application. In this case, the applicant will be obliged to provide security for the fulfillment of the obligation to pay customs duties in the form of cash or a bank guarantee in an amount not less than the amount of customs duties payable in connection with the adoption of the appealed decision.

If the applicant is a person carrying out activities in the field of customs affairs or an authorized economic operator (AEO), then, at their request, ensuring the suspension of execution of the appealed decision may be ensuring the fulfillment of the duties of a legal entity carrying out activities in the field of customs affairs, ensuring the fulfillment of the duties of the AEO, but if provided that the amount of customs duties payable in connection with the adoption of the appealed decision does not exceed the amount of the listed security. The customs authority must make a decision on such an application within 7 working days.

This provision will make it possible to suspend the action of the appealed decision not only through the court, but also in the customs authority itself . A positive point is that the customs representative has the opportunity to use his “registry” security to suspend the action of the customs authority’s decision.

The law also describes a new category of declarants who are exempt from providing security for the fulfillment of the obligation to pay customs duties, taxes, and customs fees . This benefit will be available to declarants who, over the previous 3 calendar years, have fulfilled their obligation to pay customs duties in the amount of at least 10 billion rubles . In addition, their total value of assets for the previous calendar year must be 10 or more times greater than the amount of security for the fulfillment of the obligation to pay customs duties, special, anti-dumping, and countervailing duties.

Also, when releasing goods before completing the verification of customs and other documents and (or) information and (or) when assigning a customs examination, it is possible not to provide security for the fulfillment of the obligation to pay customs duties, taxes, and fees. This will be permissible in cases where customs operations in relation to transported goods on behalf of and on behalf of the declarant are carried out by a customs representative who bears joint and several liability with the declarant for the payment of duties and taxes.

In this case, a number of conditions must be met. Thus, the amount of the obligation to pay customs duties, taxes, special, anti-dumping, countervailing duties for persons represented by the customs representative, as well as those that arose and were not terminated at the time of the decision on failure to provide security, should not exceed 20% of the amount of security for the fulfillment of the duty of the customs representative, in relation to which there are also innovations in the law.

It has been determined that it is obliged to publish on its official website up-to-date information about the cost of services provided and to inform the Federal Customs Service of Russia about this by submitting reports . This provision has already caused a barrage of justified criticism and discontent.

It is also established that only a customs operations specialist can perform customs operations on behalf of a customs representative . This norm is a stumbling block: the business expects to change it, since implementation will lead to significant costs.

Customs operations

No. 311-FZ “On customs regulation in the Russian Federation”, namely its fifth section, establishes the main types of customs operations. It is worth talking about some types of operations in more detail, as this will give a complete picture of the entire system under consideration as a whole. How are goods placed under the customs procedure?

The first thing worth highlighting here is called customs declaration. Chapter 24 of this Federal Law lists the main types of goods subject to declaration, the main places of declaration, forms of necessary certificates, the procedure for submitting all necessary documentation, etc. All those aspects due to which the declaration of products must be carried out efficiently and effectively are listed in the bill.

Chapter 25 of the Federal Law talks about the release of goods. Here the main documents, release dates, as well as conditions for refusal (usually related to incorrect declaration) are established. The fourth section of this bill lists customs export procedures, types of warehouses, types of customs processing, as well as procedures for admitting products into the country.