IMPORTANT ISSUES WHICH CONCERN THE MERCHANT IN REGARDS TO THE CHANGE IN CUSTOMS LAW
*IT HAS BEEN POSITIVE TO PASS ON THE ‘FAULTY ACTS’ TO CUSTOMS CODE.
Anti-Smuggling Law "acts of misconduct" were transferred to the Customs Code. The same act which is present on both Customs Law and Smuggling Law with different penalties was causing problems on practice. This change in the law has been good for solving these kind of problems.
*IT HAS BEEN POSITIVE TO MAKE CRIMINAL STATUTE OF LIMITATIONS PARALLEL TO TAX STATUTE OF LIMITATIONS.
With the change in the code, the difference which is not squaring with the justice has been resolved in regards to timeout of the tax base penalty. The contradiction has been corrected by the code which is, while the timeout is 3 years for tax base, it was 8 years in the aspect of penalties.
*THE CHANGE IN THE CODE REMOVES THE PRINCIPAL OF ‘JUSTICE IN PENALTY’
With the change, when the acts which were transferred to Customs Code are considered together with all the other acts on the Customs Code, it is understood that the principal of ‘justice in penalty’ has been removed and there is a penalty logic which will cause imbalance within the Customs Code no. 4458 in regards to penalties.
This situation is caused by transferring the faulty acts in Anti-Smuggling Law to Customs Code as ‘’multiplied bonded value’’. Though, sanctions in Customs Code are applied as ‘multiplied duty’’ or a fixed irregularity penalty.
Concept of ‘Bonded Value’
Before the change in the Customs Code, penalties were issued as ‘multiplied customs duties’.
For instance: Lets assume a good with 100.000TL value was declared with an HS Code which VAT is applicable but has no applicable customs duty . If the customs authorities detect that the declaration was misleading and there is %10 Customs duty applicable for the good, then a penalty of three times the customs duties will be levied. So in this case 30.000 TL will be charged for the missing 10.000 TL duty. In addition to this, since the 10.000 TL will be included on the VAT basis, there is going to be a 5.400 TL VAT penalty for the missing 1.800 TL VAT which was not paid. So in total it will be 35.400 TL.
After the penalties are ensured with the change on the Customs Law and linked with the ‘bonded value’;
The sanctions will reach to a serious amount. Because the ‘bonded value’ is the value of the goods with its taxes included. So according to the example above, if the penalty was equal to the two (2) times of the bonded value, the calculation would be as follows; 100.000 TL value of the goods + 10.000 TL Customs Duty + 1.800 TL VAT = 111.800 TL bonded value of the goods, so that the penalty would be two times the bonded value which equals to 223.600 TL.
ARTICLE 12 OF THE LAW IS A VERY SERIOUS POTENTIAL THREAT BOTH FOR THE MERCHANT AND THE CUSTOMS CONSULTANT
While transferring some of the faulty acts to the Customs Code, the acts were not transferred as they were in the Anti-Smuggling Law, and some phraseologies were changed. Below statement was added to the beginning of the Article 235 of the Customs Code, which was not present in the Anti-Smuggling Law.
Article 235- After the inspection of the goods which are subject to free circulation regime;
c-) If the importation of a good is subject to a licence, permit or conformity/sufficiency certificates from certain institutions and it was declared as if the goods were not subject to any of the requirements mentioned above or as if the requirements were met and certificates were obtained, then if this is realized by the customs officials during an inspection or a post-clearance inspection, a penalty equal to two times of the ''bonded value of the goods'' will occur in addition to the customs duties of the goods.
Same act on the Article 11 of the Anti-Smuggling Law was as follows;
‘’ If the importation of a good is subject to a licence, permit or conformity/sufficiency certificates from certain institutions and if these goods were imported with misleading processes and acts, there is going to be a penalty equal to two times of the bonded value of the goods. ''
As you can see, the act which was mentioned as ''imported'' on the Anti-Smuggling Law was changed into ''if determined after the declaration during an inspection or post-clearance inspection''.
According to this provision, ‘’detecting’’ would be enough for any sanction. Where as if the expression was transferred the way it is in Anti-Smuggling Law, due to the terms of ‘’attempt to fault can not be penalized’’,there wouldn’t be any penalties for the acts which are in the declaration phase.
So, since scienter will not be seeked on these acts, the changes will cause irreparable damage in the future.
* SCIENTER IS NOT SEEKED IN CUSTOMS CODE IN TERMS OF THE FAULTY ACTS
Scienter was being seeked for the ones who committed the act within the Anti-Smuggling Law, but with the addition to the Customs Code, scienter will not be seeked and the ''result'' itself will be enough for penalty.
This is why it is a potential threat to remove the expression ‘’attempt for fault can not be penalized’’.
*NOT SEEKING FOR SCIENTER REVOKES THE RIGHTS TO DEFEND AGAINST HARSH SANCTIONS
In practice, most of the cases (%80) were concluded against the Administrations in terms of the faulty acts in Anti-Smuggling Law, because no scienter were seeked. There were no penalties if no scienter was detected. With the alteration, the right of the defense is removed due to not seeking for scienter.
Because at this point it is not going to be important if there is scienter or not, instead the result itself is going to be enough for determination. When you consider that the ‘fault’ is in the nature of customs processes, this high penalties without seeking for any scienter make the Customs area a very dangerous place. Even though it was not intended, a simple mistake can lead the companies to a penalty which they can not pay.
*IT WILL NOT BE CONSIDERED IF THE PERSON NOTIFIES (REMORSE-REGRET) THE MISTAKE HIMSELF
According to article 234 of the Customs Code, if the person informs the authorities of his fault before they detect, the applied penalty will be at %15 rate. Same kind of provisions which revoke or reduce the penalties in remorse situations are also present on the Anti-Smuggling Law. While the faulty acts were being transferred to Customs Law from Anti-Smuggling Law, the parts which allow people to notify the mistakes themselves was not placed in it. The expactations were making the neccessary changes without any penalties in cases of mistakes which were determined by the obligor and notified to the authorities, but there were no changes about this article.
*WITH ADDITION OF 235/1-C IT IS NOT CONVENIENT TO PASS THE PROPERTY OF THE GOOD TO PUBLIC
With this alteration, it is now under provision with the 4. article that desolating the good by passing the property to public.
Whereas, here, the good should be redounded to economy after the necessary permissions are taken. Moreover, this provision is not presumed for other acts, which occurs another injustice.
*THE SITUATION IS THE SAME IN TERMS OF OUR EXPORTERS WHO USE INWARD PROCESSING
According to the Article 238 of Customs Law, penalty for the regime violance of Inward Processing Regime was equal to ''two times of the customs duties''.
With the changes it is now ''two times of the bonded value of the goods''.
13-(5) ARTICLE OF THE LAW;
5TH matter added to the law has a very abstract content and is not overlaping with the realities of the trade itself.
For the goods in Bonded Warehouses, if it is determined that there is a good which is prominently different from the declared good, there will be a penalty equal to ''two times of the bonded value of this good'', ''the good will be seized and its ownership will be transferred to public'' and the goods will be subject to dissolution according to articles 177 and 180.
Here, the expression of ‘’obviously different from the ones on declaration’’ can alter from one executer to another and this situation can happen out of will or by the vendor itself. Scienter is not being seeked again and the result would be enough by itself.
As a result, we think that transferring the provisions to Customs Code without seeking for scienter and with the same sanctions can cause incompansable results. While claiming that it is possible to compromise in Customs Code implementations, we consider that the victimization can not be removed and this situations could harm the compromising institution.