Customs carrier - who is it, and what rights and responsibilities does it have?

Customs carrier - who is it?

A customs carrier is a legal entity, usually a transport company.
It transports foreign products that are under customs control. The main difference of this entity is that it can carry out transportation without obligation to pay duties. Read more about the emergence and termination of the obligation to pay customs duties here. Having a problem? Call our customs specialist:

Moscow and region (call is free)

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Responsibilities of the customs carrier

As an authorized person, the carrier must perform the following duties:

• Full compliance with all rules and requirements regulated by the Labor Code of the Customs Union.
• Maintaining records of transported products.
• Submitting reports on activities to customs authorities. The report can be submitted either personally in writing or using Internet portals in electronic form.
• In exceptional cases, ensuring full repayment of customs duties.
• Compliance with all rules for working with commercial information. It is prohibited to disclose it to third parties or use it for purposes other than transportation of goods.
• Submitting an application to change previously submitted information.

These are the main duties of the carrier, which must be fulfilled without fail. Otherwise, the organization will be subject to criminal or administrative penalties.

The customs carrier must have a license to operate.

Declarant, customs representative, carrier: who is responsible for what

The division of duties and responsibilities between the declarant and the customs representative, as well as the risks of the carrier in the light of amendments to the Code of Administrative Offenses - lawyer Evgeniy Iosifovich Malinovsky devoted his report to these topics at the round table on adjusting customs value and classification of goods, organized by YurSpectr LLC.

How are duties and responsibilities distributed between the customs representative, declarant, and carrier?

In accordance with the approach established in judicial practice, the court does not recover the amount of customs duties from the customs representative in favor of the declarant. By virtue of Art. 13 of the Tax Code, making payments is an obligation of the declarant (taxpayer). From the customs representative who declared the goods, he has the right to recover only losses.

Losses are recovered in the form of additional accrued amounts of penalties resulting from delays in customs payments, amounts of an administrative fine imposed on the declarant on the basis of Part 9 of Art. 13.6 Code of Administrative Offences. The court may recover them from the customs representative, taking into account the provisions of Art. 375 of the Civil Code (fault of the creditor), for example, by distributing responsibility between the declarant and the representative in a 50/50 ratio.

Is it possible to limit the liability of a customs representative?

If we are talking about fixing in the agency agreement conditions that limit the liability of a customs representative who incorrectly determined the EAEU HS code in the goods declaration, we believe this cannot be done.

What is the practice of bringing a carrier to administrative liability in light of the amendments to the Code of Administrative Offenses, effective from January 31, 2018?

Analysis of judicial practice emerging in connection with the change from January 31, 2018 to Ch. 14 of the Administrative Code showed the following. Instead of confiscating the subject of an administrative offense (goods), the court now imposes a fine of up to 30% of its value. Moreover, the size of the fine can be different: 5, 15, or 30%. The number of decisions according to which a person brought to justice is released from it due to the insignificance of the offense <*> has increased.

This approach was the result not only of changes to the Code of Administrative Offenses, but also of the adoption of Presidential Decree No. 7 of November 23, 2017 “On the Development of Entrepreneurship.” This regulatory legal act established the obligation of the court, when considering cases involving customs authorities, to proceed from the presumption of good faith of business entities.

These are positive aspects of the formation of judicial practice. Are there any negative ones?

Changes to the Code of Administrative Offenses have created the problem of increased liability for carriers during international transportation. Previously, carriers were not held administratively liable for false information about the goods being transported in shipping documents. The basis for this approach was the absence of culpable behavior. Now, after the removal of the institution of an unidentified person from the Code of Administrative Offenses and the Code of Administrative Offenses, carriers began to be held accountable under Part 1 and Part 3 of Art. 14.5 of the Administrative Code already with a statement of guilty behavior and a fine of up to 30% of the value of the cargo. Moreover, payment of the fine is not ensured by the value of the transported cargo, as was the case when confiscation (turning into state ownership) of the goods was applied.

The legal risks of carriers determine the conditions of liability when moving cargo in the customs procedure of customs transit, when the carrier acts as a declarant. We believe it is incorrect that the customs authorities charge the carrier with non-declaration or false declaration in a situation where the goods in the accompanying documents were incorrectly named by the shipper or forwarder by mistake or due to some defect.

In relation to Art. 8 CMR, the carrier is not responsible for the name of the cargo. This is the first thing. Secondly, in connection with the customs transit procedure declared by the carrier when importing into the customs territory of the EAEU, customs payments are not required. As a consequence, the level of control in relation to imported goods is different compared to the customs procedure for domestic consumption. If we are not talking about an obvious substitution of the goods being moved, apply administrative penalties to carriers under Part 1 or Part 3 of Art. 14.5 of the Code of Administrative Offenses is unlawful.

What do you see as a solution to the current situation?

In the near future, it needs to be comprehensively resolved by regulations. In particular, it is necessary to review the elements of administrative offenses in Chapter. 14 Code of Administrative Offences. It may be necessary to change the provisions of Art. 2.4 of the Code of Administrative Offenses (complicity in an administrative offence), determining that the performer, organizer and accomplice for the purposes of administrative liability can be not only an individual, as now, but also a legal entity. This will make it possible to prosecute and fine those actually guilty of non-declaration or false declaration of goods.

Obtaining a customs carrier license

Each customs carrier must obtain a license to carry out its activities. To obtain this document, you must contact the customs authority with an application.

The application must be submitted along with a package of documents. It should contain:

• A copy of the decision to create an association (society), notarized.
• A copy of the decision of a business entity to grant a person the powers of a general director.
• A copy of the Charter certified by a notary.
• A notarized copy of the Certificate of registration of the organization with the tax authority.
• A notarized copy of an extract from the Unified State Register of Legal Entities.
• Original certificate from credit institutions about the status of all accounts of the legal entity.
• A notarized copy of the bank guarantee.
• Copies of documents certified by the participants of the enterprise confirming the right of a legal entity to operate transport for professional activities (transportation of products).
• Copies of transportation agreements, etc., certified by the members of the association.

After submitting an application with a package of documents, you need to wait until the customs authority:

• will enter the company into the register of carriers,
• will provide a license to operate.

Procedure for inclusion in the register of customs carriers

After submitting an application and a package of documents, if all conditions are met, the appropriate license is issued.
The carrier is included in a special register. Within 24 hours after this procedure, the authorized customs office must notify other customs authorities that may in one way or another be connected with the activities of the organization. Within 14 days after being included in the register, the organization must undergo a registration procedure with the customs authorities, which may be related to its professional activities. To do this, fill out a registration card. The organization receives a copy of this document for each vehicle used in the process of work.

The transport organization, together with the authorized customs authority, must draw up a special notification plan. It contains the procedure for notification of the arrival of goods. Thereafter, the entity must always comply with the established plan.

Conditions for inclusion in the register

A transport organization must meet certain conditions to be included in the register. These include:

• Experience in transporting products across the state border for at least 2 calendar years.
• Providing the state body with security for the repayment of customs duties in the amount established by current legislation.
• Availability of permission to carry out professional activities (if necessary).
• Availability of transport in personal property or other forms for carrying out professional activities.
• No debts to customs on the day of application.
• Absence of facts of bringing to administrative or criminal liability for crimes related to transport transportation within 1 calendar year, etc.

Only if all the requirements and conditions established by current legislation are met, it is possible to obtain permission to carry out transport operations without the need to pay customs duties.

Carrier / TIR Admission

Don’t know what a customs carrier is and how its status differs from the TIR procedure? That way.

In contrast to admission to the TIR procedure, the status of a customs carrier is assigned by a single body - the Federal Customs Service. But that doesn't make the process much easier.

Inclusion in the Register of Customs Carriers is regulated by the EAEU Customs Code, Federal Law No. 289 of 08/03/2018 “On Customs Regulation” and other acts

2018 Customs carrier Code and Federal Law

CONDITIONS FOR INCLUSION IN THE REGISTER OF CUSTOMS CARRIERS:

1. experience in cargo transportation for at least 2 years;

2. ensuring payment of customs duties in the amount of 200 thousand euros (bank guarantee / deposit / surety);

3. availability of a permit to carry out activities for the transportation of goods, if this type of activity requires the presence of the specified document (required if you carry out transportation abroad);

4. owning/renting vehicles suitable for transporting goods under customs seals and stamps;

5. absence of an unfulfilled obligation to pay customs duties;

6. absence of facts of bringing to administrative responsibility within 1 year before the date of application to the Federal Customs Service of Russia for offenses in the field of customs affairs provided for in Articles 16.1, 16.3, 16.5, 16.6, 16.9, 16.10, 16.11, 16.13, 16.14, 16.15, parts 2 and 3 of Article 16.23 and part 1 of Article 16.24 of the Code of the Russian Federation on Administrative Offences;

7. the company is not a state-owned enterprise or state unitary enterprise, and also does not belong to the customs authorities.

PROCEDURE FOR INCLUSION IN THE REGISTER OF CUSTOMS CARRIERS

PREPARING AND SUBMITTING AN APPLICATION

We attach the following documents to the application: - certificate of registration with the tax authority; — documents for the right to own and use vehicles;

— certificates of approval of vehicles for the transportation of goods under customs seals and seals, if any. Please note that you will still need these documents. You can read more about the evidence here;

— documents confirming the provision by the Federal Customs Service of Russia of security for the payment of customs duties in an amount equivalent to 200 thousand euros;

— confirmations from banks about accounts opened in them;

— contracts for the carriage of goods, confirming the implementation of activities for the transportation of goods for at least two years.

Despite the apparent simplicity of the application, in our practice, all carriers without exception make mistakes when preparing the application. If the submitted application or the documents accompanying it are not satisfied by the FCS, then the carrier is sent a refusal to be included in the Register of Customs Carriers. Such “football” will delay obtaining the status of a customs carrier for about 1 year. With our help, you get results the first time.

After accepting your application, the Federal Customs Service of Russia checks the carrier using databases of debts and violators. The package of submitted documents is also carefully checked. This is why it is so important that the application and document package look impeccable.

DO I NEED TO TRANSFER 200 THOUSAND EUROS TO THE FCS ACCOUNT?

A typical mistake in understanding the provision of payment of customs duties is that the amount of 200 thousand euros means that it is credited to the FCS account. The amount is large and this stops many. But fortunately, this is not the case. The law establishes different ways to ensure the payment of customs duties. The most common are bank guarantee and surety agreement. Also, not everyone knows that security for payment of payments does not have to be provided immediately. You can submit all documents except security.

If the application and its annexes are drawn up correctly, then within 30 days the Federal Customs Service of Russia will send you a preliminary positive decision on inclusion in the Register of the Federal Customs Service of Russia. With our help, this period is of course less than 30 days. This means that all you have to do is send security for payment of customs duties to the Federal Customs Service of Russia.

WE MAKE A BANK GUARANTEE / GUARANTEE AND SEND IT TO THE FCS OF RUSSIA.

The law gives you 1 month to provide security for payment of customs duties. With our clients, we do not wait to receive a preliminary decision, but suggest in advance the moment when they need to receive a bank guarantee. Thus, with us, the period for obtaining the status of a customs carrier is the shortest possible.

This also has its own subtleties, you need to know them. We advise our clients on the correct and affordable security options. At the same time, we do everything so that the payment security is accepted by the Federal Customs Service of Russia. You can also deposit the amount of 200 thousand euros (in rubles) to the account of the Federal Customs Service of Russia (but you need to know how to do this correctly).

WE WAIT FOR THE ISSUANCE OF THE ORDER OF THE FCS OF RUSSIA ON INCLUSION IN THE REGISTER AND RECEIVE THE CERTIFICATE.

After you have sent security for payment of payments, the Federal Customs Service issues an order about 2 weeks in advance to include your company in the Register of Customs Carriers, of which you are informed. You can get the certificate yourself in the building of the Federal Customs Service of Russia. Accelerating these processes and informing you is our task if you are included in the Register with our help.