Monday, March 23, 2009

Post-Clearance Customs Audits

Since recently Ukraine as a party to the Kyoto Convention provides changes to customs control policy. In particular, customs authorities shift the main volume of customs control. Total physical examination at the border will be substitute by post-clearance audit based control of selected importers. of Consequently, as high customs officials declare, the number of post-clearance customs audits will increase soon.

Post-clearance audit system includes local and regional customs offices’ control subdivisions subordinated to central control body - The Department of analytical work and financial monitoring (The Department). Nowadays they inspect about 3% of importers and exporters selected by the Department.

Importers selection for audit
Such selection is made on the basis of importer’s risk profile, created by the Department. Risk profile consists of risk indicators. Combination of the following risk indicators increases the likelihood of importer’s selection for post-clearance customs audit:

- parties to import contract are:
o affiliated persons;
o dealers or distributors;
o registered in tax heaven;
o former lawbreakers.
- import contract:
o differs from purchase contract;
o financial leasing contract;
o contribution to the statutory fund;
o exchange deal;
o etc.
- imported goods are:
o often smuggled in;
o tax exempted
- etc.

Audit types
Post-entry audits are conducted on a scheduled and out-of-scheduled basis in the importer’s office. Customs authorities may also conduct desk audits without visiting importer by examining customs declarations archived in customs offices.

Schedule audits
Importers listed in the quarter audit plan are subject to schedule post-clearance audits. Audit plan is developed by the Department which primarily lists importers satisfying abovementioned risk indicators.

Customs and tax authorities simultaneously start schedule audits in 10 calendar days after sending notification to importer. Such audits last for up to 20 business days and may be extended by up to 10 days if there are valid reasons. Schedule audits are conducted maximum once per year.

Out-of-schedule audits
If importer is not listed in the audit plan customs authorities still may conduct out-of-schedule audit under following conditions:

violations of customs legislation by the importer are discovered;
importer does not respond timely to the request of customs authorities concerning cross-checking of information received from importer’s business partners;
importer claims violations by customs authorities during earlier audits;
importer fails to file obligatory reporting documents on time.

Currently no time limit for out-of-schedule audits is prescribed. There is draft legislation limiting duration of out-of schedule audits to 20 business days.

The Department may also follow up post-clearance audits of local control subdivisions by repeat audits.

The process of audit
Generally customs inspectors examine customs declarations, contracts, financial, accounting and any other import related documents which may verify customs declarations data.

During post-clearance audits customs inspectors may conduct other actions.

Seizure of documents Customs inspectors may seize documents in case they reveal facts of contraband; illegitimate exemption from, or reduction in taxes and duties. It is followed by the execution of Record on violation of customs rules enlisting seized documents.

Inspection of facilities Customs inspectors may examine, test, try and seal importer’s production, trade and storage facilities if it is necessary for consideration of questions related to imported goods.

Audit statement and tax assessment
The results of post-entry audit are documented in the audit statement which shall be presented to importer’s management. Customs authorities shall record the amounts of understated import taxes (customs duty, VAT, excise), if any, in the audit statement.

Importer may present written objection in respect of the facts and conclusions indicated in the audit statement within 5 business days after its receipt. Audit statement imposes no obligation on importer. Therefore there is no way to appeal audit statement via courts. Appeal process may be initiated only after receipt of tax assessment note.

Tax assessment note imposes on importer an obligation to pay extra import taxes and fine within 10 calendar days after its receipt. Amount of fine may be up to 100% of the amount of assessed customs duty and VAT.

P.S. i'm just training in the art of legal writing. will be grateful for any recomendations of improvement.


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