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Euroopan komissio on julkaissut uuden tullausarvon määrittelyä koskevan ohjeistuksen

8.10.2020

Uusi tullausarvon määrittelyä koskeva ohjeistus

Euroopan komissio on julkaissut 17.9.2020 päivätyn uuden tullausarvon määrittelyä koskevan ohjeistuksensa, jolla otetaan kantaa EU:n tullikoodeksin tulkintaan. Aiempi vastaava ohjeistus oli vuodelta 2016. Uudesta ohjeistuksesta on mm. poistettu viittaus ”domestic sale” -käsitteeseen, jonka perusteella kahden EU-alueelle sijoittautuneen yhtiön välistä kauppaa ei tulisi ottaa huomioon määriteltäessä tullausarvoa kauppahinnan perusteella. Tämä muutos voi olla merkittävä esimerkiksi konserneille, joilla on EU:n sisäisiä myyntejä maahantuodun tavaran osalta ennen tavaran päätymistä loppuasiakkaalle. Muutos voi vaikuttaa merkittävästi tullauskustannuksiin ja saattaa aiheuttaa tarpeen järjestellä toimitusketjuja uudelleen.

Löydät tarkemmat tiedot ohjeistuksesta alta.

Global Trade Alert | Updated Guidance on Customs Valuation

On 17 September 2020, the European Commission updated its Guidance on Customs Valuation. Due to the removal of references to "domestic sale" from the updated Guidance, transactions concluded between EU-based parties may be used for customs valuation purposes. While Commission Guidance documents are not legally binding, they are, in practice, often followed by customs authorities.

 

"Domestic Sale" in the previous Guidance on Customs Valuation

Based on the European Union (EU) customs legislation, the primary method of determining the value of imported goods for customs purposes is the transaction value. In simple terms, this means that the customs value will be determined on the basis of the price the buyer paid for imported goods when sold for export to the EU. In situations when goods are sold multiple times before they are brought into the EU customs territory, the last sale occurring immediately before the goods enter the EU will form the basis of the customs value of the goods (the so-called "last sale principle").

In the previous version of its Guidance on Customs Valuation, the European Commission (Commission) interpreted the last sale principle as excluding a "domestic sale" (understood to mean a transaction where the buyr and seller are both established in the EU). In practice, it meant that the last sale in a string of sales leading to goods being brought into the EU could not be used for customs valuation purposes if it was concluded between EU-established parties.

At the meeting of the Commission Customs Expoert Group, held on 11-12 October 2018, it was decided to remove the concept of "domestic sale" from the Guidance on Customs Valuation, and provide, instead, practical examples of when a sale between two EU residents may be regarded as a sale for export. On 17 September 2020, the Commission issued the updated Guidance on Customs Valuation which refects the revised approach.

Updated Guidance on Customs Valuation

The updated Guidance on Customs Valuation (Guidance) does not contain references to domestic sale. It also highlights the international legal instrumets and the case-law of the European Court of Justice supporting the conclusion on the irrelevance of the place of residence / establishment of the parties to teh transaction in order to recognise the transaction as a sale for export.

However, the removal of the references to "domestic sale" from the updated Guidance seems to have shifted focus on how to treat certain other categories of EU transactions, such as back-orders, drop-shipments etc. The Commission attempts to address this issue by providing new clarifications regarding the status of purchase orfers when applying transaction value method. According to the Commission, a puchase order cannot serve as the basis for the determination of the customs value of imported goods because a purchase order is an official offer submitted by a potential buyer to a potential seller, expressing the will to conclude a sale agreement. However, unlike a sales contract, a purchase order in itself it is not a binding contractual arrangement. Only when the future seller actually confirms (accepts) the purchase order order is not acepted, the transaction may not be considered as a sale for export. 

The Commission further makes a connection with the invoice as being a fundamental document to apply the transaction value method. Thus, aside from generally highlighting the importance of the invoice for the applixation of this method, it also links the availability of the invoice for a particular sale to the possibility of using that sale as a basis for customs valuation. This is apparent from several illustrative examples included in the updated Guidance. One could read these statements as the Commission being of the opinion that without the invoice, the transaction cannot serve as basis for the customs value. Take literally, this could imply that an invoice, which is generally a document used as substantiation of a transaction, is used as the criterion for existence of a transaction for customs purposes. 

Another are where the Commission has provided new guidance is the occurance of multiple sales of goods while stored in a customs warehouse. The rule in such a situation is that, if there is no sale for export occuring immediately before such goods were brought into the customs territory of the EU, the sale occuring during the storage of such goods in a customs warehouse shall be the basis for the customs value. The updated Guidance on Customs Valuation explains that, when there are multiple sales of such goods, the transaction value of the goods should be determined on the basis of the sale that closest to the moment of the intoruction of the goods into the customs territory of the EU. The relevant moment in time is thus the introduction of the goods into the customs territory of the EU, and not release of the goods for free circulation. 

Impact on business

Even though the Commission Guidance documents on customs issues are not legally binding, they are likely to be followed by national customs administrations. From the practical perspective, the significance of the updated Guidance on Customs Valuation for businesses can hardly be overstated. It is therefore important that businesses take a careful look at the updated Guidance and assess its impact on their customs valuation procedures. In some cases, a discussion with customs authorities may ensue. 

In what concerns the substance of the update, the Commission has now brought its approach in line with the wishes of the Customs Expoert Group by removing the references to "domestic sale" from the Guidance. This should end the debate about the legitimacy of the "domestic sale" principle. As a result of the update, a transaction cannot now be disqualified as a basis for customs valuation simply because it is concluded between EU-established parties. In some situations, this could mean that a transaction with a higher price will be used for determing the value of goods for customs purposes. At the same time, the Commission's clarifications regarding purchase orders and the availability of invoices may trigger new discussions, especially when interpreting some of the illustrative examples included in the updated Guidance. For companies whose supply chains involve the use of purchase orders or other types of back-order systems, the updated Guidance on Customs Valuation may have a significant impact on their customs duty burden.

Tullausasioissa teitä palvelevat:

Johanna Oksa

Johanna Oksa
johanna.oksa@deloitte.fi
+358 (0)50 4801 886

Kati Heino

Kati Heino
kati.heino@deloitte.fi
+358 (0)50 441 1290

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