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To implement the requirements of the International Convention on the Simplification and Harmonization of Customs Procedures (the so-called Kyoto Convention), a new version of the Customs Code of Ukraine was adopted, which regulated the conduct of customs audits.
The main areas of post-clearance control are:
Post-audit in customs matters takes the form of documentary inspections, which in turn are divided into on-site and desk inspections.
It should be noted that during documentary on-site inspections the supervisory authorities are granted a wide range of rights to clarify matters related to the inspection, which in turn creates additional risks of abuse that may adversely affect the company’s business. Thus, during an on-site inspection, officials of the supervisory authorities have the right to:
Given the above levers available during a customs post-audit, which can even bring a company’s business to a complete standstill, only an experienced attorney specialising in customs and tax disputes can effectively appeal post-audit findings and counter the supervisory authorities in such a case.
advice on the conduct of inspections and on the legal consequences of, and procedure for appealing, tax notice-decisions issued following a post-audit;
legal assistance during inspections;
appealing tax notice-decisions issued following a post-audit;
representation in courts of all instances;
appealing decisions, actions or inaction of supervisory authorities concerning additional assessments of monetary liabilities and penalties;
appealing decisions, actions or inaction of supervisory authorities concerning the classification of goods under the UKT ZED;
drafting requests, complaints, applications and other legal documents to appeal tax notice-decisions issued following a customs post-audit.
Financial sanctions for breaches of customs legislation are substantial. Fines range from 100 to 200% of the value of the goods that are the direct subject of the customs violation. In certain cases, the goods may also be confiscated in addition to the fine. Actions aimed at unlawfully avoiding or reducing customs payments are punishable by a fine of 300% of the unpaid customs payments. That is why self-checks of compliance with customs legislation by participants in foreign economic activity play an extremely important role in minimising the risk of negative consequences following a customs post-audit.
Keep in mind that additional assessments of monetary liabilities and penalties following a customs post-audit are often caused by the same circumstances: the importer’s additional costs not being declared in the customs value of goods (royalties, transport costs, insurance), and incorrect classification codes leading to duty being charged at the wrong rates.
The Customs Code of Ukraine gives declarants the right to correct their own mistakes. It is possible to amend a customs declaration after customs clearance has been completed, including when undeclared goods are discovered, and to adjust the royalty component of the customs value without penalties within 180 days of customs clearance.
A self-review should also be used to draw conclusions for the future. A single badly worded phrase in a contract, a poorly structured supply chain or a wrongly chosen customs regime may later lead to losses of many millions in additionally assessed monetary liabilities and penalties.
If the inspection report on which a tax notice-decision on additional monetary liabilities or penalties is based contains conclusions that the participant in foreign economic activity disagrees with, that decision should be appealed.
A documentary desk inspection is carried out in two cases:
- when the supervisory authority has found signs of a possible breach of customs legislation by analysing electronic copies of customs declarations, information on goods whose customs clearance has been completed obtained from participants in foreign economic activity and the manufacturers of such goods, or expert opinions.
- when documented information is received from the competent authorities of foreign states that the authenticity of documents submitted for goods whose customs clearance has been completed has not been confirmed or that the information in them is inaccurate, as well as requests for information on foreign economic transactions involving Ukrainian residents.
Where tax notice-decisions on additional monetary liabilities are issued following inspections within a customs post-audit, the time limit for appealing them is 1095 days from the date of the relevant decision. Such decisions are challenged in court under the procedure set out in the Code of Administrative Procedure of Ukraine.
If breaches of the correct classification of goods are discovered after customs clearance, the customs authority may classify the goods itself following a documentary inspection, as provided for in Articles 345–354 of the Customs Code of Ukraine. Therefore, when importing goods into Ukraine, it is essential to strictly comply with all requirements for completing all documents and to avoid mistakes in them.