Provisions related to the valuation of goods are amended
On July 21, 2020, Supreme Decree No. 193-2020-EF was published, which amended the Regulation for the Valuation of Goods according to the Agreement on Customs Valuation of the WTO.
In general terms, it may be seen that this regulation introduces a series of provisions and measures that seek to provide the Customs Administration with greater tools to carry out greater control and verification of the customs value (calculation basis of import taxes) declared by the importers. In contrast, importers shall bear a higher level of evidentiary burden in relation to the declared values.
The main areas covered by this regulation include:
– Clarifications are established regarding the price expressed in the Commercial Invoice that supports the import.
– The Customs Administration, within the statute of limitations, may carry out subsequent control actions regarding the values classified as values under evaluation according to risk management criteria.
– In evaluating the transaction value, the Customs Administration verifies that the payment for the imported goods has been made using means of payment through the financial system, in accordance with the provisions of the Single Ordered Text of the Law for the Fight against Evasion and for Formalization of the Economy, adopted by Supreme Decree No. 150-2007-EF.
In case of doubts regarding the documentation providing the means of payment used, the Customs Administration may carry out verifications with the entities of the financial system.
– For the Transaction Value Method (the main method for determining the customs value of imported goods) to be applied and accepted by the Customs Administration, it is necessary that, when notifying a “reasonable doubt” around the declared value, the importer presents to support the price paid or payable for the sale of the goods to be imported, the commercial, financial and accounting documents supporting that transaction, which may be presented in physical, electronic or digital means.
In the event that the declared customs value is lower than those recorded in the Customs Administration system, the importer must provide a further explanation, as well as documents or other evidence supporting the declared value. In the absence of a response or if it is insufficient, the Customs Administration may discard the Transaction Value Method and determine the customs value by applying other valuation methods provided for in the WTO Value Agreement that involve the replacement of the actual value of the transaction for reference values of identical or similar goods that the Customs Administration keeps recorded in its system, with the likely determination of a higher taxable base and the consequent obligation to pay higher import taxes.
– As part of the controls and verifications carried out by the Customs Administration in the reasonable doubt process, it may establish as an additional risk indicator a value study based, among others, on the cost of the raw material or statistical techniques corresponding to international market information in a given period.
– For the accreditation of the price actually paid or payable for imported goods adjusted in accordance with the provisions of Article 8 of the WTO Agreement on Customs Valuation, the Customs Administration considers, among other situations, the following:
a) The documentation related to the transaction value that has been required by the Customs Administration or that must be submitted in accordance with the regulations in force is submitted or exhibited;
b) There are no discrepancies or omissions between the content of the commercial invoice, transport document or insurance policy, and the books and accounting records of the importer or third parties;
c) The importer does not omit to keep the accounting books and records, other books or records required by the laws, regulations or by resolution of the SUNAT Superintendency related to the international transaction involving the importation. This omission includes the system, program, support for recording microforms, magnetic support and other computerized accounting records that replace the aforementioned books or records.
– During the reasonable doubt procedure, if the Customs Administration considers that there is evidence of the false or fraudulent nature of the documents submitted or has reasonable indications of the commission of a customs offense, the determination of the customs value of the imported goods is not subject to the provisions of the WTO Value Agreement or its Regulations, for which the regulations set forth in the Customs offenses Act and its Regulations must be applied.
This regulation shall enter into force on August 20, 2020 and shall be applicable to Customs Declarations of Goods that are numbered from their entry into force.
Derogations from the application of the mandatory Advance Clearance on the importation of goods are adopted
On July 23, 2020, Superintendence Resolution No. 000122-2020/SUNAT was published, providing for the partial entry into force, from July 24, 2020, of the General Procedure “Import for consumption” – DESPA-PG.01 (version 8), adopted by Superintendence Resolution No. 084-2020/SUNAT, in regard to cases of exception to the application of Advance Clearance in the Customs Import for Consumption regime.
The importance of this amendment lies in the fact that said General Procedure contains a broader list of exceptions to the application of the Advance Clearance, which constitutes a benefit for importers considering that the breach of said obligation is considered an infringement punishable by a fine.
Regulations of the Deferral and/or Fractionation Regime of tax debts (RAF) are adopted.
On July 4, 2020, Superintendence Resolution No. 113-2020/SUNAT was published, through which provisions were adopted for the submission of the application for placement to the RAF and the withdrawal thereof, related to the characteristics of the guarantees and other applicable provisions.
Thus, from July 8, 2020 (date of entry into force of said Resolution) until September 30, 2020, it is feasible to submit application for placement to the RAF through SUNAT Online Operations and by submitting virtual form No.1704.
As we previously reported, one of the main benefits of the RAF is to access a more beneficial interest rate equivalent to 40% of the Default Interest Rate (TIM). In customs matters the RAF may be used:
Discretionary power is adopted not to determine or sanction some customs infringements in various operational intendancies at the national level.
Through Resolutions of Deputy Superintendence of Customs Nos. 013-2020-SUNAT/300000 and 014-2020-SUNAT/300000 published on July 5 and 10, 2020, respectively, new scopes and/or amendments to the provisions on the application of the discretionary power of the Customs Administration not to determine or sanction infringements provided for in the General Customs Act (LGA) were adopted.
Thus, through Resolution of the Customs Deputy Superintendence No. 013-2020-SUNAT/300000, it was decided not to determine or sanction some infringements provided for in the LGA committed between July 1 and 31, 2020 in the Customs Intendancies of Chimbote, Mollendo, Pisco, Puerto Maldonado and Tarapoto. This, as a result of the extension of the State of National Emergency and mandatory social isolation focused on certain geographic areas of the country.
Thus, by means of this regulation, it was established that the aforementioned discretionary power shall be applicable when the following conditions are met:
– The offense has been committed since:
Both Annex I and Annex II mentioned above concern infringements and penalties applicable to foreign trade operators, importers, exporters, etc.
– The infringement has been committed by a foreign trade operator, intervening operator or third party included in the aforementioned Annexes.
– Missing or correct information has been transmitted or recorded.
It must be noted that the return or compensation of payments related to the infringements referred to in this regulation shall not proceed.
On the other hand, through the Resolution of the Customs Deputy Superintendence No. 014-2020-SUNAT/300000, it was decided to adapt to the changes carried out at the level of the Customs Offenses Table, the regulations by which the application of the Customs Administration’s discretionary power not to determine or sanction some infringements provided for in the LGA had previously been approved.
On this basis, for the purposes of applying the discretionary power, the replacement and repeal of certain infringement codes provided by Supreme Decree No.169-2020-EF through which the changes to the Customs Offenses Table were introduced as mentioned in the previous paragraph.
Similarly, the application of the discretionary power was established with respect to the infringement consisting of not using the mode of Advance Clearance (SADA) in relation to goods arriving in the country until June 30 or July 31, 2000 and that are intended for Import for Consumption regime (Code P44).
Regulation for the Special Customs Regime for Fast Delivery Shipments and other provisions were adopted
On July 21, 2020, Supreme Decree No. 192-2020-EF was published, through which the Regulation of the Special Customs Regime for Fast Delivery Shipments was adopted, in order to adapt to the amendments of the General Customs Act and its Regulations.
Through this regulation, the following was established:
• Regulate aspects related to the customs obligations of the company, classification of fast delivery shipments, identification of packages and fast delivery shipments, acts related to the entry of goods, delivery, transfer and storage of goods, among others.
• Amend subsection D of the National Complementary Note of Chapter 98 of the Customs Tariff 2017, in order to specify the types of goods included in heading 98.09 (special consignment for goods intended for the special customs regime for fast delivery shipments)
• Adapt the requirements and operating conditions of Fast Delivery Shipping Companies.
This regulation, which regulates the activities of “Courier” companies, shall come into effect on November 30, 2020.
Provisions on electronic notification of administrative acts issued by the Tax Court are adopted
Through Ministerial Resolution No. 205-2020-EF/40, published on July 17, 2020, the Procedure for Electronic Notification of Administrative Acts issued by the Tax Court and other acts Facilitating the Resolution of Disputes was adopted, among those that include: a) Resolutions issued in appeal files, complaints and requests for correction, expansion or clarification; b) Employees or Trades; and, c) Summons to oral report.
Among the main provisions adopted by this regulation include the following:
Documentation related to the Trade Agreement between the United Kingdom of Great Britain and Northern Ireland, on the one hand, and the Republic of Colombia, Ecuador and Peru, on the other, is sent to Congress
Supreme Resolution No. 064-2020-RE, published on July 3, 2020, provided for sending documentation related to the Trade Agreement between the United Kingdom of Great Britain and Northern Ireland, on the one hand, and the Republic of Colombia, Ecuador and Peru, on the other, to the Congress of the Republic, signed on May 15, 2019 in the city of Quito.
It must be remembered that the aim of this Trade Agreement is to preserve the rights and obligations assumed between the parties as provided in the Trade Agreement signed between the European Union (EU) and the Andean countries, after said Agreement ceases to apply to the United Kingdom as a result of its departure from the European bloc (December 31, 2020).
On the deduction of the value of imported inputs in Drawback requests as a mechanism to preserve the benefit.
In accordance with the Drawback regulations, there is the possibility to deduct (subtracting), from the respective FOB export value, the value of those inputs purchased locally that, having been used in the production process, entered the country without paying the full amount of import taxes (that is, having enjoyed tariff preferences or benefits), provided that there is at least one additional imported input for which the full import taxes have been paid (imported inputs subject to a tariff rate other than 0%).
In this regard, it is worth mentioning that recently the Customs Administration has issued a statement in the sense of accepting the possibility of making such deduction, even after obtaining the benefit without this entailing the loss of the right to Drawback.
In this case, the beneficiary of the Drawback must request the rectification of the Drawback request, reimburse the amount unduly restored and pay the corresponding fine (equivalent to 50% of the amount improperly restored).
On this basis, it shall be important to carry out a preventive review of the Drawback requests already submitted previously and, if applicable, make the corresponding deduction of the value of inputs to which we have referred in order to preserve the Drawback already obtained.
