Contesting unlawful charge for violation of “180 days rule” when importing goods, paid in advance
Situations when custom authorities groundlessly drag out the process of customs clearance of goods are quite common. This issue became especially drastic in the second half of 2011. In some cases such delays in the clearance of goods at border crossing points reached above several months. At that time the most popular excuse of the customs officers was that customs clearance was delayed because of “operational activities of the Security Service of Ukraine”.
Tax authorities perceived the possibility to apply penal interest and penalties for expiration of 180 days rule, prescribed by the legislation for the importation of goods, paid in advance. In such case, tax authorities apply the approach, according to which the date of importation of goods shall be the date of termination of its customs clearance (sealing respective Customs Cargo Declaration).
The said approach of tax authorities in respect of determination of the date of import transactions is illegal. Thus, the provisions of Article 1 of the Law “On Foreign Economic Activity” and para. 23 of Article 1 of the previous Customs Code of Ukraine provides for reasonable grounds to consider that importation of goods should be deemed to be completed at the moment of crossing the customs border of Ukraine and taking goods under the customs control.
Considering the illegality of tax authorities’ approach, there are reasonable grounds for appealing against decisions on application of penal interest and penalties in similar cases. The possibility of a positive resolution of this issue at the stage of administrative appeal has recently been confirmed in practice by the specialists of KM Partners law firm.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.