The independent elimination of violations identified by the results of a desk customs inspection does not entail the accrual and payment of penalties.
Based on the act of desk customs inspection, the customs authority issued a notice to the partnership on the elimination of violations based on the results of the desk customs inspection dated September 9, 2015, in which the partnership was asked to independently eliminate the violations identified in the declaration of goods with corrections in columns "33" and "47". The notification was received by the partnership on October 1, 2015. On October 14, 2015, the partnership submitted to the customs authority an adjustment of the goods declaration (hereinafter referred to as the CDT) in accordance with the established form, with changes in columns 33 "product code" and 47 "calculation of payments". On the same day, the calculated amount of customs duties (import customs duty and VAT) in the amount of 2,882,482 tenge was paid by the declarant to the state revenue. The customs authority, considering that the declarant must pay a penalty for late payment of customs duty and VAT from the moment of importation of the goods, issued on October 16, 2015 a notice of repayment of the penalty in the amount of 1,095,640 tenge. The Partnership challenged the notice of repayment of the penalty in court.
The independent elimination of violations identified by the results of a desk customs inspection does not entail the accrual and payment of penalties.
The local courts resolved the dispute in favor of the declarant, arguing that there were no grounds for the customs authority to issue the disputed notice, since the partnership had independently eliminated the violations identified by the desk check, and the notice of elimination of violations dated September 9, 2015 did not provide for the obligation to pay penalties. The Court of Cassation, having considered the case on the protest of the Prosecutor General of the Republic of Kazakhstan, supported the position of the local courts (Resolution No. 3gp-954-16 dated November 23, 2016). By virtue of paragraph 4 of Article 91 of the Customs Code of the Customs Union, in case of non-payment or incomplete payment by the payer within the prescribed period of customs duties and taxes, penalties are paid, the procedure for accrual, payment, collection and refund of which is established by the legislation of the EAEU member state, the customs authority of which collects customs duties, taxes and penalties. Paragraph 1 of Article 158 of the Code "On Customs Affairs in the Republic of Kazakhstan" (as amended on the date of the disputed notification, hereinafter referred to as the Code of the Republic of Kazakhstan) provides that the penalty is paid in case of arrears in customs payments. In the case under consideration, the declarant's debt on customs payments arose on October 14, 2015 in connection with the submission of the KDT in compliance with the notification on the elimination of violations based on the results of the desk customs inspection dated September 9, 2015. The issuance of this notification by the customs authority and the actions of the declarant to eliminate violations specified in the notification comply with paragraph 5 of Article 220 of the Code of the Republic of Kazakhstan, which provides that if the customs authorities identify violations in the customs declaration based on the results of a desk customs inspection, the person being checked is given the right to eliminate them independently. The independent elimination of violations identified by the results of a desk customs inspection is recognized as the fulfillment of the requirements contained in the notification of the elimination of violations, including by submitting adjustments to the customs declaration by the person being checked, if necessary, with a copy of the payment document attached to repay the amounts owed on customs payments and taxes in case of agreement with the violations specified in the notification (paragraph 6 Article 220 of the Code of the Republic of Kazakhstan). The notification of the elimination of violations based on the results of the desk customs inspection was executed by the declarant within the time period established by paragraph 13 of Article 221-1 of the Code of the Republic of Kazakhstan, that is, no more than ten working days from the day following the day of delivery of such notification to the person being checked. The customs payments were paid by the partnership on the day of the submission of the KDT, therefore, there was no delay in payment as a basis for the accrual of penalties.
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