Fiscal supervision by customs

Fiscal supervision by customs

1. fiscal supervision of excise duties

Sections 209 to 217 of the Fiscal Code (AO) contain special provisions for the supervision of excise duties. The tax supervision according to § 209 et seq. is aimed at the continuous monitoring of the excisable facts. In contrast to external audits, tax supervision does not suspend the expiry of the assessment period, Section 171 (4) AO.

All excise duties are subject to tax supervision. Pursuant to § 21 para. 1 UStG, this also includes import turnover tax. It does not include motor vehicle tax and other duties administered by the main customs offices (e.g. import and export duties, market regulation duties).

The following circumstances are covered by Section 209 (1) and (2) AO:

• movement of goods across the border,
• movement of goods in free zones and free warehouses,
• production and manufacture, storage, transport and commercial use of excisable goods,
• Trade in excisable goods,
• shipment, export, storage, use, destruction, processing, transformation and other handling or processing of goods in an excise procedure,
• production and export of goods for which a remission, refund or reimbursement of excise tax is claimed.
• In addition, tax supervision pursuant to Section 209 (3) of the Tax Code shall cover a matter if so provided by law.

a) Powers of the Main Customs Offices

Sections 210 to 217 AO regulate the powers of the main customs offices and the rights and obligations of the person concerned in tax supervision.

aa) Inspection

The inspection pursuant to Section 210 (1) and (2) AO represents an essential possibility of tax supervision. According to this, the main customs offices, in order to carry out inspections or make findings that may be relevant for taxation, are entitled to enter the properties and premises of persons who carry out a commercial or professional activity independently and to whom facts subject to tax supervision are to be attributed, during business and working hours, Section 210 (1) AO.

Pursuant to Section 210 (2) AO, the time restriction does not apply if facts justify the assumption that smuggled goods or improperly taxed excisable goods are located there or that regulations or orders are otherwise being violated there, compliance with which is to be ensured by tax supervision. The suspicion within the meaning of Section 210 (2) AO must be concrete, i.e. there must be concrete and verifiable indications pointing to the premises to be searched as, for example, the storage location of the contraband goods.

Private properties or private rooms are not covered by the inspection, nor is a car.

bb) Stopping rights

Pursuant to Section 210 (3) of the German Fiscal Code (AO), the main customs offices are authorized to stop ships and other vehicles which, in terms of their appearance, serve commercial purposes, within the scope of controls limited in time and place. A concrete suspicion is not required. The persons concerned must identify themselves and provide information about the goods they are carrying. If there are indications that excisable goods are being carried, the officers can check the goods and make all findings that may be relevant for the taxation of these goods. In doing so, the persons concerned shall indicate the origin of the excisable goods, tolerate the taking of free samples and provide the necessary assistance.

cc) Special supervisory measures

Pursuant to Section 213 of the German Fiscal Code (AO), businesses or companies whose owners or their executives have been legally punished for tax evasion (Section 370 AO), attempted tax evasion (Section 370 (2) AO, 22 et seq. of the German Criminal Code (StGB)) or participation in such an act may be subjected to special supervisory measures at their expense. In this context, the measures ordered must be suitable and necessary to ensure effective tax supervision in the future and thus to prevent future excise tax evasion. Such measures include, for example, the secure locking of rooms, containers and equipment, as well as similar measures.

dd) Seizure by way of supervision

Pursuant to Section 215 AO, the main customs offices are authorized to seize excisable goods that are

• are located in premises subject to registration and have not been declared to the tax authorities,
• are in trade without packaging, designation, marking in accordance with the tax laws or without tax marks in accordance with the regulations,
• (dutiable) goods found in the border area or in areas subject to border control, if they do not appear to be Community goods or have not been released for free circulation under the circumstances, as well as
• packaging of such excisable and dutiable goods, and
• equipment intended for the manufacture of excisable goods and located in a manufacturing plant not declared to the main customs offices.

The seizure is carried out by removal, affixing and sealing or by prohibition of disposal. In this respect, the provision of Section 215 AO is in addition to the criminal law provisions on the seizure and confiscation of objects (Sections 94 et seq. of the Code of Criminal Procedure). The seizure under Section 215 AO is also permissible if the items were initially seized in criminal proceedings and then made available to the main customs office. In addition, a seizure is possible if individual tax laws prescribe this, e.g. Section 51b of the German Spirits Monopoly Act (BranntwMonG), Section 65 of the German Energy Tax Act (EnergieStG) or if the seizure is ordered pursuant to Section 215 AO, Section 23 (1) sentence 5 of the German Tobacco Tax Act (TabStG).

In this respect, Section 216 AO stipulates that goods that have been seized pursuant to Section 215 AO must subsequently, in principle, be transferred to the ownership of the Federal Government. Such a transfer is not permissible if

• confiscation under Section 375 (2) AO is possible (confiscation under criminal tax law),
• it is found property and a claim to ownership is asserted, or
• an undue hardship within the meaning of Section 215 (5) AO already exists or is foreseeable prior to the transfer.

ee) Appointment of Tax Assistants

Pursuant to Section 217 AO, tax assistants may be appointed by the main customs offices for the purpose of establishing facts relevant under customs and excise law. The prerequisite for this is that the tax assistant is a natural person and that he or she is not personally affected by the result of the determination and agrees to his or her appointment. The appointed auxiliary persons may only be entrusted with the determination of facts under customs and excise law, which would otherwise have to be determined by customs officials. These facts may include, for example, determining the nature, character, and quantity of a commodity, determining the weight or volume of a commodity, determining that a customs seal is intact, or supervising the destruction of a commodity. In some cases, the excise tax laws contain special provisions that take precedence over the provisions of Section 217 AO (Section 44 (2) BranntwMonG, Section 62 (2) EnergieStG).

2. Tax supervision of import and export duties

Pursuant to Article 134 (1) of the Union Customs Code (Article 37 (1) sentence 1 of the Customs Code), goods brought into the customs territory of the Union are subject to customs supervision from the time of their introduction. This serves the realization of the physical registration of the goods and the determination of their customs status by the customs. Pursuant to Section 10 of the Customs Administration Act (ZollVG), the customs authority is granted a wide range of powers:

• rights of stop and inspection with regard to persons and vehicles and outside the border area, § 10 para. 1 and para. 2 ZollVG,
• overhaul of vehicles, Section 10 (3a) ZollVG,
• search of residential premises, Section 10(5) ZollVG,
• physical search of persons, Section 10 (3) ZollVG.

Customs supervision ends in principle at the time when the goods are released for free circulation and the status of the goods now changes to that of Community goods.

In addition to Article 134 of the Union Customs Code (Article 37 of the Customs Code), Article 158 (3) of the Union Customs Code (Article 59 (2) of the Customs Code) regulates customs supervision for Union goods that have been declared for export, outward processing or internal Union transit. Customs supervision ends when the goods have left the customs territory of the Union, have been abandoned for the benefit of the treasury, have been destroyed or the customs declaration has been declared invalid.

In addition, according to Article 267 of the Union Customs Code (Article 183 of the Customs Code), goods brought out of the customs territory of the Union are subject to customs supervision, regardless of whether they are Union or nonUnion goods.