COMMENTS TO MOST IMPORTANT REGULATIONS
Discretionary power are adopted not to determine or temporarily sanction various infringements provided for in the General Customs Act with regard to foreign trade operators and intervening operators.
Through Resolution of the Deputy National Customs Superintendence No. 012-2020-SUNAT/300000, published on June 29, 2020, Customs was authorized to apply the discretionary power not to determine or sanction various infringements with regard to definitive export operations and equipment for aeronautical use, committed by customs clearance officers, beneficiaries of material for aeronautical use, exporters and administrators or concessionaires of port facilities.
For the purposes of applying said discretionary power, it must be taken into account that:
(i) Infringements must be expressly included in the Single Annex of said rule;
(ii) Infringements must have been committed by the operators identified in the aforementioned Single Annex; and,
(iii) Conditions established for each type of infringement referred to in the rule under comment must be met.
One of the main infringements included within the aforementioned discretionary power is that related to the failure to transmit or provide necessary documentation to regularize the definitive export customs regime in the form and terms legally established or arranged by Customs.
The term established for Customs to apply the discretion not to determine infringements or impose sanctions, in general terms, is subject to the following terms:
• Under the definitive export regime, it is applied to infringements committed between June 30, 2020 and September 30, 2020 at the Customs Departments of Puno and Tacna; and, between July 31, 2020 and October 31, 2020 at, among others, the Maritime Customs Department of Callao, Customs Departments of Chimbote, Salaverry, Pisco.
• In material operations for aeronautical use, it applies to infringements committed between July 31, 2020 and October 31, 2020.
It should be noted that the return or compensation of payments related to the infringements referred to in this rule shall not proceed.
Table of Sanctions applicable to customs infringements is amended.
Through Supreme Decree No. 169-2020-EF, published on June 30, 2020, it has been arranged to amend the Table of Sanctions applicable to the Infringements provided for in the General Customs Act, in order to promote the correction of infringing behaviors, amen the scope of certain infringement cases and ensure proper customs control.
Among the main developments contained in this rule are:
• The possibility has been foreseen of reducing the fine related to the incorrect customs declaration when it has a tax incidence, provided that the error is corrected before the Customs order or notification. If this is the case, the fine would be reduced from 200% of the unpaid taxes to 50% of said taxes.
• It is specified that, in order for the rectification to be considered carried out before any requirement or notification from the Customs, it must be done prior to the notification of the imputation of the act or omission constituting an administrative infringement.
In addition, it is indicated that the rectification is carried out with the rectification of the action constituting the infringement or with the execution of the omitted action that gave rise to the commission of the infringement, and with the cancellation of the taxes and surcharges unpaid. When it is not possible to rectify the infringement committed, it is considered rectified with the cancellation of taxes and surcharges unpaid.
• The repeal of the infringement cases related to transmitting/declaring incomplete and erroneous data in the customs declaration has been provided, as long as they do not generate tax incidence (sanction codes N25 and P17).
• Various specific provisions have been established in relation to the reduction of sanctions applicable to foreign trade operators and intervening operators (importers and exporters)
The entry into force of this rule shall occur within 10 working days from the date of its publication.
Discretionary power was extended not to determine or sanction some customs infringements committed until June 30, 2020.
Through Resolution of Deputy National Superintendence of Customs No. 0008-2020-SUNAT/300000, published on June 7, 2020, it was provided to extend the discretionary power of Customs to not determine or sanction the infringements provided for in the Resolution of Deputy National Superintendence of Customs No. 006-2020-SUNAT/300000, which have been committed between June 10, 2020 and June 30, 2020.
A total of 52 infringements (40% of the total infringements covered by customs legislation) applicable to foreign trade operators, importers, exporters, beneficiaries of customs regimes, etc., were covered by the provision in comment, etc., in matters related to transmission, and submission of information and documents, submission of declarations and customs control actions.
With this, the aforementioned infringements, committed from July 1, 2020, could be validly determined and sanctioned by Customs to the extent that they are not included within the scope of the Resolution of the National Deputy Superintendent of Customs No. 012-2020-SUNAT/300000, to which we have previously referred.
Regulation of the Deferral and/or Fractionation Regime of tax debts (RAF) is published.
Through Supreme Decree No. 155-2020-EF, published on June 23, 2020, the Regulation of the Deferral and/or Fractionation Regime of the tax debts administered by SUNAT (RAF) was issued and adopted by Legislative Decree No. 1487.
The deadline for submitting the application for placement to the RAF has been extended until September 30, 2020 (initially the deadline was until August 31, 2020). In addition, provisions relating to the calculation of the monthly fee have been regulated, as well as the allocation of advance payments.
One of the main benefits of the RAF is access to a more beneficial interest rate equivalent to 40% of the Default Interest Rate (TIM).
As previously reported, in customs matters, the RAF may be used:
• The customs tax debts contained in collection settlements that are pending payment as of the filing date of the request for subscribing, and that are linked to a determination resolution or fine resolution of the Sanctions Table applicable to the planned infringements in the General Customs Act or in the Customs Crimes Unit Act.
• The balances of a previous deferral and/or fractionation, granted with a particular or general basis, in force or with a cause of loss, as of the date of submission of the request for subscribing, even when the resolution declaring its loss has been notified.
• The customs tax debt whose challenge is in process at the date of the request for subscribing.
The Authorized Exporter Regulation is issued which shall empower exporters to issue their own declarations of origin.
Through Supreme Decree No. 005-2020-MINCETUR, published on June 13, 2020, the Authorized Exporter Regulations were adopted, which shall allow exporters with the status of “Authorized Exporter” to issue their own certificates of origin, for the purposes of granting tariff preferences to their goods when imported into: Costa Rica; Honduras; Japan; Panama; the countries of the European Union; and, the countries of the European Free Trade Association – EFTA (Switzerland, Liechtenstein, Norway and Iceland).
The main benefit is the reduction of time and costs in the export operations of the Authorized Exporters since they shall not have to go to the delegated entities for the issuance of certificates of origin (unions authorized by MINCETUR, for example) whereas, being that, on the basis of this authorization, exporters may issue their own certificates of origin.
Exporters must submit an application to MINCETUR to obtain this certification, proving compliance with certain requirements, such as: (i) having carried out 10 exports the year prior to the submission of the application; (ii) undertake to allow verification of the originating status of the goods; (iii) designate a representative duly trained in origin issues, who shall be in charge of issuing certifications of origin; and, (iv) have a file system or electronic database of certifications of origin and their respective supporting documentation.
The term of this authorization is 3 years from the day after the MINCETUR resolution is notified, granting it. This authorization may be renewed, for which an application must be submitted to MINCETUR at least 60 calendar days before the expiration of the initial authorization.
Information Module on Logistics Services for Foreign Trade is implemented.
Through Supreme Decree No. 007-2020-MINCETUR, published on June 30, 2020, the Regulation of the Information Module on Logistics Services for Foreign Trade (MISLO) was adopted, subject to the provisions of Law No. 28977, Foreign Trade Facilitation Act, amended by Law No. 30809.
MISLO is a computer platform that is freely accessible to the public and contains information on: a) the description of each of the services provided by the operators involved in foreign trade operations, b) the price corresponding to each service that it is provided, excluding the General Sales Tax (IGV) and detailing the currency; and, c) the list of services that are provided to the IGV.
The information published in MISLO is binding for the user and the operator involved in foreign trade operations.
The following operators are obliged to electronically submit and update the information of all the services they provide:
o Administrators or concessionaires of international ports, airports or land terminals.
o International freight transport companies by road.
o International cargo agents.
o Customs warehouses providing public services.
o Shipping and airline lines or their representatives.
o Shipping agents.
o Multimodal transport operators.
o Postal service companies.
o Fast delivery service companies.
o Customs agents.
o Those service providers that are incorporated into the General Customs Act as foreign trade operators.
This information must be transmitted in a timely manner through the Single Window for Foreign Trade (VUCE), for which the respective MISLO form shall be used. This information shall be considered an affidavit.
It should be noted that the MISLO shall become operational from the date that is established by MINCETUR through a Ministerial Resolution, in which it shall publish the list of the first operators that join the MISLO, as well as the date from which they are obliged to submit information.
Those who fail to submit and/or updating this information shall be fined up to 10 Tax Units UIT.
MINCETUR shall not determine or sanction operators for a period of 6 months from the date on which they are obliged to transmit the respective information. This period of 6 months may be extended by MINCETUR.
The draft of the Regulation of Legislative Decree No. 1492 was published, Legislative Decree that approves provisions for the reactivation, continuity and efficiency of operations linked to the foreign trade logistics chain.
Through Ministerial Resolution No. 102-2020-MINCETUR, published on June 20, 2020, the publication of the draft of the Regulation of Legislative Decree No. 1492, which aims to establish mechanisms for the digitization of the processes of the foreign trade operators, and public entities linked to the entry and exit of goods and cargo transportation, as well as to guarantee transparency in the foreign trade logistics chain.
The main aspects included in this regulatory draft include: (i) the possibility for public entities to establish alternative mechanisms to carry out physical inspections; (ii) the implementation of the information exchange module that allows endorsement by electronic means to obtain the bill of lading and the commercial authorization to deliver the cargo; (iii) the inspection, determination and sanction of the breach of the obligations related to the digitization of the process and logistical procedures by the private sector.
It should be noted that comments on said draft may be sent until Monday, July 6, 2020, to the email: ihuapaya@mincetur.gob.pe
OTHER CURRENT NEWS
Resumption of the calculation of deadlines for administrative procedures carried out by Customs and competent entities in the field of foreign trade.
On June 10, 2020 the period expired during which the deadlines for initiating and processing administrative procedures were suspended due to the State of National Emergency, as provided for in Supreme Decree No. 087-2020-PCM.
With this, from June 11, 2020, the calculation of the term for the initiation and processing of administrative procedures has to be resumed, including matters related to customs matters and matters within the competence of entities related to the control of foreign trade operations.
It should be noted that for the purpose of submitting writings and/or documentation, the SUNAT Virtual Court Registry has been implemented: http://orientacion.sunat.gob.pe/index.php/personas-menu/centro-de-tramites-virtual/mesa-de-partes-virtual
In general, other entities related to the control of foreign trade operations have also enabled virtual mechanisms for submitting writings and/or documentation.
The Tax Court issues provisions related to care during the State of National Emergency.
In the framework of the State of National Emergency decreed by the government, as a result of COVID-19, the Tax Court has ordered the following actions that shall allow the continuation of the development of its activities:
a) A virtual channel has been created for the submission of documents via email: TFmesadepartes@mef.gob.pe
Writings related to proceedings pending in the Tax Court, complaints and requests for expansion, correction or clarification shall be received, considering the following aspects:
• A single file shall be accepted in PDF format, whose capacity does not exceed 25MB, preferably with a digital signature.
• Compressed files or formats other than PDF shall not be received.
• Documents submitted between 00:00 hours and 16:30 hours on a working day shall be deemed to have been submitted on the same day. After 16:30 hours until 23:59 hours, they shall be deemed to have been filed on the following working day.
• If documents are submitted on Saturdays, Sundays and holidays or any other non-working day, they shall be deemed to have been submitted on the first following working day.
In cases where the submission of original documents is required, these must be submitted at the Virtual Court Registry of the Tax Court.
b) Provision has been made for the conduct of oral report proceedings through videoconferences.
c) Members, reporting secretaries and advisers may remove files from the Tax Court for the purpose of remote processing.
d) Members and reporting secretaries may meet through videoconferences or other forms of electronic conferences.
e) The administrators may review the files after a coordinated meeting with the Tax Court.
Details for issuing and accepting copies of certificates of origin with scanned signatures.
As reported by MINCETUR through various communiqués, the following countries have accepted the issuance of copies of certificates of origin with scanned signatures, in order to access preferential tariff treatment: China, the European Union, Costa Rica, Uruguay, Colombia, Chile, Bolivia, Ecuador, Japan, Singapore, Brazil, Mexico, EFTA countries (Switzerland, Liechtenstein, Norway and Iceland), Paraguay, Thailand, the Russian Federation, Venezuela and Argentina.
In relation to the above, the following countries have established additional considerations that must be observed in order for such copies to be accepted:
• Russian Federation: The following should be handwritten or printed on the back of the copy of the certificate of origin: “The original of this certificate of origin shall be submitted no later than 6 months from the date of registration of the goods declaration”.
• Japan: The copy of the certificate of origin must meet the following conditions: color image (not monochrome), with a resolution of 200 dpi or more, and that is legible.
• Venezuela: Copies of certificates of origin with scanned signatures shall be accepted until June 12, 2020.
• Thailand: The original of the certificate of origin must be submitted to the Thai customs authority within 30 days after the clearance of the goods. The importer may request an extension of the term for up to 30 days, provided that the request for extension is sent to the customs authority at least 7 working days before the end of the initial 30 days.
• Chile: Thirty days after the completion of the foreign trade operation, the originals of the documents that make up the respective customs clearance must be sent through the customs agents, in order to maintain proper control and enforcement of customs legislation.
New provisions on the mechanism for determining the collection of the IGV on imports of goods sensitive to fraud are adopted.
Through Supreme Decree No. 151-2020-EF, published on June 17, 2020, the new list of national subheadings corresponding to goods sensitive to fraud was approved, as well as the methodology to obtain the reference FOB value and the list of fixed amounts.
Some of the goods included in this list are dyed fabrics; knotted mesh fabrics; bed, table, dressing table or kitchen linen; among others.
Provisions for the entry and exit of goods necessary for the holding of international events declared to be of national interest are approved.
Through Superintendence Resolution No. 107-2020/SUNAT, published on June 30, the approval of the specific procedure “International Events under Law No. 29963 and international agreements signed by Peru” – DESPA-PE.00.19 (version 1) was ordered.
This procedure, which enters into force on July 1, 2020, aims to establish guidelines for the entry and exit of goods necessary for the realization, coverage or dissemination of international events declared to be of national interest in the framework of Law No. 29963 (Act on customs facilitation and entry of participants for the realization of international events declared to be of national interest) and international agreements signed by Peru.
Exceptional measures for the entry into the national territory of controlled goods are provided.
Through Supreme Decree No. 156-2020-EF, published on June 23, 2020, it has been established that, exceptionally, the authorization to enter the national territory of chemical supplies and controlled goods must pre-exist the numbering of the customs declaration, with respect to supplies whose means of transport that transfers them had arrived or arrive in the country during the State of National Emergency.
This, taking into account the current national emergency situation as a result of COVID-19, which has generated (and has been generating) a series of difficulties that prevent the respective authorization to enter the country of said supplies prior to the arrival of the means of transport, as established in article 30 of the Regulation of Legislative Decree No. 1126.
