Regulations of Special Development Zones (ZED) are approved.-
Through Supreme Decree No. 005-2019-MINCETUR published on August 2, 2019, the Regulation of Special Development Zones – ZED was approved. This regulation establishes the provisions that apply to the ZEDs of Tumbes, Ilo, Matarani and Paita, formerly known as Centers for export, processing, industry, marketing and services (CETICOS); in order to improve the regulatory framework applicable to the ZEDs, which would be expected to favor the generation of adequate conditions to attract domestic and foreign investors to these zones.
It should be noted that this regulation is approved within a context in which the government’s efforts to make the regulation on free zones in general flexible and less complex and more coherent are appreciable, as well as to seek to generate more attractive benefits for investors in general.
The main provisions in this regulation are the following:
1. The activities that can be developed in the ZEDs are specified, in line with the provisions of Law No. 30777, Law that amends the provisions on Special Development Zones to facilitate investments in these areas.
2. Provisions related to the private operator are approved, who is the private legal entity authorized and supervised by the Ministry of Foreign Trade and Tourism to build, develop, administer, manage and maintain the proper functioning of the ZEDs.
3. Regulations related to the public auction are included for the assignment of onerous use and/or acquisition of the lots of land with or without buildings in order to show the user status in the ZEDs.
4. The possibility of authorizing the provision of auxiliary services within the ZEDs, such as sale of food, cafeteria, banks, etc., is envisaged.
5. A maximum period of two years is established for the user to start operations, which is counted from the signing of the respective user contract, assignment of onerous use or purchase contract.
The Regulation of Legislative Decree No. 1413, Legislative Decree to promote and facilitate the maritime cabotage of transport of passenger and cargo was approved.
Through Supreme Decree No. 029-2019-MTC published on August 6, 2019, the Regulation of Legislative Decree No. 1413 was approved, a regulation issued to promote and facilitate maritime cabotage of transport of passenger and cargo.
It should be observed that the aforementioned Legislative Decree sought to modernize, flexibilize and make cabotage regulations more attractive in order to encourage greater investments in the transport sector, as well as better attention to national demand, seeking to generate better levels of competitiveness.
The statutory regulations subject matter of discussion are intended to promote and facilitate maritime cabotage of transport in order to generate a competitive alternative for the transport of passenger and cargo on the Peruvian coast (from one national port to another national port).
The main provisions of the regulation subject matter of discussion are:
– It is established that any individual or legal entity must be incorporated in Peru and have previously obtained the respective operating permit, as well as the certificate of safe transport conditions in order to perform cabotage operations,
– The individual or legal entity with capital stock of domestic or foreign origin is exempted from the requirement of being incorporated in the country and obtaining the operation permit for a period of 3 years. The Ministry of Transportation and Communications will analyze this exception period a year before it expires in order to evaluate its continuity.
– The obligation of the authorized shipping company to record the detail of passenger and cargo cabotage operations within 48 hours after the completion of the shipping or unloading/landing operations is established.
– It is required that cabotage passenger transport includes foreign-flagged passenger ships.
– Maritime cargo cabotage with landings in international ports is carried out between ports authorized to carry out operations of entry and exit of goods into and from the national territory.
– It is required that cabotage, that is to say, the procedure that allows loading cargo in a national port to be unloaded in another national port, also applies to cases where the ship providing transport arrives at international ports prior to unloading, provided that the cargo remains on board the same means of transport that returns it to the national territory.
– The procedure and the requirements to obtain the corresponding operation permit is regulated.
– The grounds for the application of the penalties of suspension and cancellation of the operating permit are regulated.
– All obligations of the carrier or its representative are detailed, as well as those of the concessionaire of the port where such operations will be carried out.
Approval of Discretionary Power not to temporarily determine or sanction the infringements that are set forth in the General Customs Act related to the import of goods into the country applicable to Customs Brokers and owners or consignees.
On August 5, 2019 the National Customs Deputy Superintendency Resolution No. 017-2019-SUNAT/300000 was published, which authorized the exercise of the discretionary power so that the Customs Authority does not have to temporarily apply sanctions related to certain infringements related to the import of goods into the country.
It is important to appreciate that these efforts, which can be considered isolated, seek higher levels of reasonableness and justice in the process of imposing sanctions by the Customs Authority. However, It would be expected that according to the changes made through Legislative Decree 1433, such efforts begin to be oriented to seek higher levels of reasonableness and justice in the due analysis of facts and circumstances in order to determine in which cases should the infringement be considered committed or not. It would be expected that the statutory regulation that orders the application of this new infringement determination system would be published in the remainder of this year.
In relation to the Resolution subject matter of discussion, it can be appreciated that the Customs Authority may exercise its discretionary power not to determine or sanction the following infringements provided for in article 192 of the General Customs Act:
In order to exercise the discretionary power, the infringement must have been committed as follows:
a) Dates: From August 10, 2019 to November 10, 2019, in the Customs Intendency of Paita, Customs Intendency of Salaverry, Customs Intendency of Chimbote, Maritime Customs of El Callao, Customs Intendency of Pisco, Customs Intendency of Ilo and Customs Intendency of Mollendo.
b) Date: From August 31, 2019 to December 16, 2019 in the Air and Postal Customs Intendency.
c) Dates: September 16 to December 16, 2019 in the other Customs Intendencies.
This measure is supported on the fact that between August and September 2019 improvements will be implemented in relation to the process of entering goods of the component of the Program «Customs Facilitation, Security and Transparency» – FAST, which could generate inconsistencies at an information technology level, therefore the non-application of sanctions due to inconsistencies in the customs systems is justified.
On the qualification of exporting producers for the application of the Drawback regime.- On the occasion of the recurring legal advice that we offer to various companies in the export sector, we note that the Area of Customs Audits is constantly questioning technical aspects related to the production processes on which exporters base their Drawback orders.
This, despite the existence of important criteria established by the Tax Court and the Customs Authority itself around that for the purposes of Drawback: (i) the competence to define technical characteristics (start, completion, stages, etc.). The Customs Authority is not responsible for production processes, but for the relevant sectorial companies on the basis of the regulations governing it and defining the scope of its actions; and, (ii) the Customs Authority may require technical support from public and/or private entities.
Based on the above, and in order to demonstrate compliance with the requirements related to the development of the production process for the purposes of Drawback, it would be advisable to have opinions from public and/or private entities based on which, from a technical point of view, technical characteristics of the goods production processes and the exporting producer statutes of the Drawback applicant can be supported on a case-by-case basis. This must be provided in a timely manner and with appropriate explanations during the development of the control processes that are carried out.
It would, of course, be appropriate for such technical opinions to be drawn up by the competent sectorial entity based on the regulations that govern its sector.
