Incurrence of the customs debt
Customs evasion refers to the evasion of import/export duties. The "collection of customs duties" is based on the physical object (goods) and its transportation into the customs territory of the EU. The reduction of import/export duties as a result of customs evasion depends on the incurrence of a customs debt. The facts that give rise to the customs debt can be found in Articles 77 to 87 of the Union Customs Code (Articles 201 to 205 of the Customs Code). These provisions have a similar scheme: first, the fact of incurrence is regulated, then the time of incurrence of the customs debt and finally the debtor:
Para. 1: The incurrence
Paragraph 2: The time
Paragraph 3: The debtor
According to the customs debt law principles, the customs debt arises only for goods brought into the customs territory of the EU and only once.
1. release for free circulation (Art. 77 Union Customs Code [Art. 201 Customs Code])
Example: Someone buys goods in a non-Community territory and declares them to the customs offices with a 20% low price as actually paid when returning to Germany.
When the goods are released for free circulation for customs and tax purposes, the import duty debt according to Article 77 (1) (a) of the Union Customs Code (Article 201 (1) (a) of the Customs Code) is incurred. However, the import duties legally owed have been under-recorded and under-reported in the accounts due to the under-declaration of the purchase price. The basis for determining the customs value is the price actually paid or payable (Article 70(1) Union Customs Code [29(1) Customs Code]), i.e. the full payment.
By declaring the purchase price too low, an offence under Section 370 (1) No. 1 AO (German Fiscal Code) has been committed, since the offender has provided incorrect information to the customs authority about the fiscally significant fact of the price paid or payable in the customs value declaration, and therefore the import duties were under-recorded and under-reported.
2. irregular shipment (Art. 79 of the Union Customs Code [Art. 202 of the Customs Code])
Example: Someone buys goods in a non-Community country and transports them by his business aircraft back to Germany without interruption and lands on his company premises. The goods are not declared to customs.
In this case, the goods were transported in violation of the regulations, since they were not immediately transported to the authorized point. In air transport, this would have been a customs airport publicly announced in the Federal Gazette. A company premises does not belong to this. Pursuant to Art. 79(1)(a) UCC (Art. 202(1)(a) Customs Code), the import duty debt was incurred.
As a result, import duties were evaded pursuant to Sec. 370 (1) No. 2 AO, since the perpetrator, in breach of his duty, left the customs authority in ignorance of the incurrence of the customs debt and therefore the import duties were not recorded in the books and notified.
Even if the perpetrator had been mistaken about the obligation to pay duties, this would be irrelevant, since the status of a customs debtor is based solely on the existence of the objective elements, Article 79 (3) (a) of the Customs Code (Article 202 (3), first indent of the Customs Code).
3. removal from customs supervision (Article 79(1)(a) of the Union Customs Code [Article 203 of the Customs Code]).
Example: Someone moves products with his truck under an external Community transit procedure. He has previously declared this to the customs office and had it opened. However, to end the transit procedure, the products are not presented to the customs office as intended, but directly to the consignee without informing a customs authority. This was intended from the beginning, so that it is not necessary to pay attention to the opening hours of the customs office and the disputed opinion of the customs office on the classification of products in the customs tariff can be circumvented. However, the consignee of the goods is not an authorized consignee.
Here, the offender should have duly terminated the transit procedure by reconciling the available data between the customs office of departure and the customs office of destination (Art. 226 in conjunction with Art. 215 (2) Union Customs Code [Art. 96 Customs Code]). As a result of this infringement, the customs authority is prevented from carrying out the checks provided for in Article 134(1) of the Union Customs Code [Article 37(1) of the Customs Code]. Accordingly, the customs debt pursuant to Article 77 (1) of the Union Customs Code [Article 203 (1) of the Customs Code] has arisen. Customs supervision begins with the introduction of the non-Community goods into the customs territory of the EU (Article 134(1) of the Union Customs Code [Article 37(1) of the Customs Code]) and ends with their release into a customs-approved treatment or use (Article 134(2) of the Union Customs Code [Article 37(2) of the Customs Code]).
As a result, the offender has evaded the import duties pursuant to Section 370 (1) No. 2 AO, since he failed to inform the customs authority about the incurrence of the customs debt in breach of his duties and, as a result, the import duties were not recorded in the books and notified.
4. breach of obligations (Art. 77 of the Union Customs Code [Art. 204 of the Customs Code])
Example: After a three-month stay in a non-Community country, a person declares a car purchased there to the customs office as personal property for release for free circulation under customs and tax law. In doing so, he intentionally states in the customs declaration that he had his habitual residence in the non-Community country for 12 months and had given up his residence in Germany. The customs office releases the used car into free circulation free of customs duties and import VAT.
Persons who have had their normal place of residence outside the EU for at least 12 consecutive months may be granted duty exemption for household effects in accordance with Article 5 (1) of the Duty Exemption Regulation. However, these conditions are not met in the present case. The import duty debt is therefore to be paid pursuant to Art. Article 77 (1) (b) of the Union Customs Code (204 (1) of the Customs Code). In this regard, the possibility of cure under Art. 77(1)(b) Union Customs Code (Art. 204(1) Customs Code) is also excluded, as the customs debt does not arise if it can be proven that the misconduct did not have a real impact on the proper handling of the temporary storage or the customs procedure in question.
Accordingly, import duties were evaded pursuant to Section 370 (1) No. 1 of the German Fiscal Code (AO), since the perpetrator made an incorrect statement to the customs authority regarding the tax-relevant fact of domicile and, as a result, the import duties legally owed were not recorded in the books and notified.
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