The term customs offense can be found in a parenthetical addition to Section 369 (1) AO (German Fiscal Code). It follows from this that customs offenses are tax offenses, but this does not necessarily apply vice versa. However, this specification in Section 369 (1) AO is superfluous in this respect, since according to Section 3 (3) AO import and export duties are taxes within the meaning of the AO pursuant to Article 5 No. 20 and 21 of the Union Customs Code (Article 4 No. 10 and 11 of the Customs Code). The Union Customs Code defines this as follows:
- Customs duties and charges having equivalent effect on importation of goods;
- levies and other charges imposed on importation provided for under the common agricultural policy or under the special arrangements applicable to certain processed agricultural products;
- Levies payable on the importation of goods.
- Customs duties and charges having equivalent effect on the export of goods;
- Levies and other charges levied on exportation provided for under the common agricultural policy or under the special arrangements applicable to certain processed agricultural products;
- Levies payable on the export of goods.
Accordingly, customs duties (or import and export duties) are suitable subjects of tax evasion under Section 370 AO, pursuant to Section 3(3) AO.
Despite the international or cross-border reference in the import and export of goods, there are no regulations in European law regarding customs criminal law. Accordingly, German criminal law applies, in particular the German Fiscal Code (Abgabenordnung).
Customs duties are regulated by EU law. This is mainly in the Union Customs Code, the Customs Duty Exemption Regulation, the Combined Nomenclature and the like. According to Article 201 (2) of the Union Customs Code [Article 79 of the Customs Code], a non-Union good acquires the status of a Union good when it is released for free circulation. The release also includes the collection of the legally owed duties. These duties are based on the Common Customs Tariff, Article 56(1) of the Union Customs Code [Article 20(1) of the Customs Code]. The determination of the duty itself does not result from the Union Customs Code, but from a multitude of Community legal provisions.
Customs offenses do not, however, include impairments of other duties that are administered by the customs administration for reasons of competence, such as, above all, special excise duties if they are levied as an import duty (Section 1 (1) sentence 3 of the Customs Administration Act) and because of their importation on the basis of a dynamic reference in the relevant excise duty law (e.g. Section 19 of the Energy Tax Act) in accordance with customs law provisions. However, the specific provisions of customs criminal law are formulated in such a way that they either include excise duties as import duties (Section 370 (6) AO) or expressly include excise duties as a domestic duty without a border reference (Sections 374 (1), 375 (2) AO).
A more in-depth description of customs criminal law can be found on the page smuggling .
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