CRIMINAL DEFENSE AGAINST THE ACCUSATION OF TAX EVASION REGARDING IMPORT DUTIES
The most commonly known customs offense is smuggling. According to the legal definition of § 373 AO, this includes the breach of the ban as well as customs evasion. Smuggling can be divided into three forms:
Classic smuggling, intelligence smuggling and travel smuggling.
1. 'Classic' smuggling
Classical smuggling is smuggling across the border of the customs territory and includes the cases of customs evasion and breach of the ban, which are realized by circumventing the official border customs offices in violation of customs obligations when entering the customs territory of the EU.
Typical forms of classic smuggling include:
- Crossing the border with non-Community goods via the "green border", although there is no exemption from the obligation to transport.
- During transport on a customs route, the goods leave the customs route without the consent of the responsible customs office or are modified. This also applies to watercraft on a water customs route that make contact with land outside an approved customs landing place.
- Landing an aircraft outside an approved customs aerodrome without being exempted from this obligation.
- Failure to present the goods upon arrival at the official place or at another authorized place.
- Use of the "green exit" for goods exempt from declaration at airports or seaports, although goods subject to declaration are also carried in the luggage.
- Passing through a road customs office in tourist traffic with goods subject to duty without spontaneously making an oral declaration (the irregular movement results from Article 83(2)(a) of the Union Customs Code [Article 234(2) of the Customs Code] - Implementing Regulation).
- For goods hidden in the engine compartment, no express presentation notification of the place of storage is issued (violation of the express notification requirement for hidden or concealed goods pursuant to Section 8 sentence 2 of the Customs Ordinance).
- Theft and other unauthorized removal of a good from the place of safekeeping.
- Unauthorized removal of placed non-community goods from the official place.
The offense of classic smuggling consists of violations of customs regulations for bringing goods into the customs territory of the EU or customs supervision. Violations of the following obligations to act come into consideration:
a) Duty to act transport (Art. 135 para. 1 Union Customs Code [Art. 38 para. 1 Customs Code] in conjunction with. §§ Sections 2, 3 Customs Administration Act)
The infringement consists in transporting, contrary to the obligation, immediately after crossing the border of the customs territory of the EU, the transferred goods without delay and without hindrance on the route prescribed for this purpose to the competent customs office.
b) Duty to act Observance of time restrictions (§ 3 Customs Administration Act)
This obligation concerns only the import of goods on a customs route. The corresponding official acts, e.g. the receipt of a notification on the presentation of goods, can only be performed during opening hours. This is not possible outside the opening hours. An exception is made in the case of tourist traffic, as there are no opening hours there.
c) Duty to act Presentation (Art. 139 Union Customs Code [Art. 40 Customs Code])
The purpose of the presentation is to provide the tax authorities with knowledge of tax-relevant facts, in particular by means of the notification pursuant to Article 55 No. 3 of the Union Customs Code (Article 4 No. 19 of the Customs Code). There is no mandatory formal requirement, so that a recognizable action is sufficient. In the case of smuggling, the obligation to present the goods is violated at the moment when the perpetrator crosses the border of the customs territory.
Hidden or concealed goods are not presented until there is an explicit notification of the goods and the respective place of custody. Otherwise, it is not possible for the customs office to perform its duties properly. Goods are considered to be concealed if they are kept in a place that is unusual for their transport (e.g. transport of goods in the door panel of a truck). Concealed is goods for the transport of which a special device has been created.
The European Court of Justice (judgment of 03.03.2005 - C-195/03) is of the opinion that a properly lodged declaration is deemed not to have been fulfilled by a subsequently incorrect summary declaration.
d) Duty to act temporary storage (Art. 144 UCC [Art. 50 Customs Code])
Non-Union goods are in temporary custody from the time they are brought in until they are assigned a customs-approved treatment or use. The non-Union goods may not be removed from this custody, e.g. by leaving the official place without permission of the customs office.
e) Duty to act summary declaration (Art. 127-132 UZK [Art. 36a - 36c Customs Code])
Since 01.01.2011 there is a legal obligation to submit a summary declaration (entry declaration according to Art. 127 UZK (Art. 183 Customs Code - Implementing Regulation). The deadline for this declaration depends on the respective transport route. Thus, in road transport, the deadline is at least one hour before arrival at the customs office of entry into the customs territory of the EU. Violation of the duty to act constitutes an act within the meaning of Section 370 (1) No. 2 of the Fiscal Code (AO), in that by failing to comply with the aforementioned customs duties, the trader violates tax disclosure obligations and thus, in breach of duty, leaves the tax authority in ignorance of fiscally significant facts, namely the introduction of non-Community goods into the customs territory of the EU or withdrawal from their customs supervision. The act is completed at the moment when the customs debt would have been assessed in case of proper conduct. This is the moment when the customs authority would have assessed the import duties in the regular course of importation. This corresponds to the moment of crossing the border, since at that moment the import duties would have been entered in the accounts and notified as a condition for release for onward transport, or fulfilled in the relevant procedure (Art. 194/195 [Art. 74 Customs Code]).
2. 'Intelligence' smuggling
Intelligence smuggling differs from classical smuggling in that classical smuggling involves the physical transfer of goods across the border of the customs territory, while the act of intelligence smuggling consists primarily in making false statements and attaching falsified documents. This then leads to false bases of assessment and unjustified customs benefits. Typical manifestations of intelligence smuggling are:
- Incomplete or incorrect declarations to customs.
- Incorrect data for the bases of assessment (nature, quantity, customs value and duty rate, incorrect classification).
- Incorrect information or submission of incorrect preferential proofs for preferential measures.
- Incorrect information for duty exemptions and preferential treatments.
- Abuse of customs procedures with economic significance.
- Abuse of customs transit procedures.
According to Art. 173 of the Customs Code (Art. 65 of the Customs Code), the declarant has the possibility to correct a customs declaration that has already been accepted by the customs authorities. However, this is not possible in the cases of paragraph 2 letters a. to c. of Art. 173 UCC (letters a. to c. of Art. 65 Customs Code).
a) Incorrect information about the customs value
Incorrect declaration of customs value is practically the most important form of intelligence smuggling. While customs offices used to have the option of using the normal price as the basis for customs clearance in the case of goods whose declared value differed conspicuously from the usual competitive price, today they must also accept an obviously unreasonably low price as the value. An exception exists only if it can be proven that a different price is actually payable. Misrepresentation regarding customs value is often accompanied by evasion of other taxes. Thus, the reduced customs value leads to the fact that the offender receives a profit, which, however, can only remain with him if he conceals or disguises it by further acts of evasion. The basis for determining the customs value is the price paid or to be paid. In this respect, an invoice or other enclosed documents can only be considered as an indication. If the value of the imported goods according to the submitted invoice or other attached document is obviously disproportionate to the actual value of the goods, the facts must be further investigated.
A popular evasion method is under-invoicing. This involves presenting invoices to customs officials that show a price that is too low. It is not uncommon for the invoices to be subsequently rewritten to the legally owed price, so that the perpetrator can then claim his right to deduct input tax at the legal price. Another method is to divide the purchase price among several invoices. This is intended to disguise advance payments or trade-ins, for example. This does not comply with the legal requirements, as the sum of all payments or services is decisive for the customs value. Frequently, cost items in particular, such as transport and insurance costs, commissions, royalties, etc., are issued in separate invoices. This contradicts Art. 71 UZK (Art. 32 Customs Code).
In addition to under-invoicing, there is also the possibility of over-invoicing, i.e. the presentation of falsified invoices showing an over-invoiced price. This can lead to evasion of import duties insofar as additional duties are levied on certain goods if the price of the imports falls below a threshold price set by the EU. Over-invoicing is used in particular to circumvent anti-dumping duties. Dumping exists according to Art. VI GATT, when goods of one country are sold below their normal value on the market of another country. This is the case when the price of an export product is cheaper than the price in the exporting country. The EU tries to counteract this by imposing an anti-dumping duty. Thus, by means of over-invoicing, the actual purchase price can be manipulated in such a way that it exceeds the dumping threshold when it is declared for release for free circulation in the EU.
b) Incorrect information about quality features
The incorrect indication of a characteristic of the goods to be imported leads to the application of an incorrect customs tariff and thus to an incorrect duty (and import VAT), Art. 56 UCC ( Art. 20 Customs Code).
Often these incorrect declarations are made not only to have a low duty shown, but also to circumvent prohibitions and restrictions, e.g. when reindeer meat (prohibited) is declared as deer meat (allowed). One of the most significant variants is the import of fake (imitation) antiques declared as (not imitation) antiques of heading 9706 00 00 CN (Combined Nomenclature - duty free). In most cases, the perpetrator uses this variant to obtain a certificate of the goods as an antique from customs in order to use it later for fraudulent purposes when selling the goods.
c) Incorrect information on origin or for preferential treatment.
In many cases, a preferential rate of duty (reduced or zero duty) is applied to imports of non-Community goods. This tariff preference is granted for goods with a specific origin.
Decisive for the recognition of the origin of the goods is a proof of this. However, in the context of intelligence smuggling, the proof documents are often obtained by deceiving the issuing authority or through corruption. It is not uncommon for letterbox companies to be interposed to deceive about the actual origin of the goods.
In addition to incorrect declarations of preferential origin, there is also the possibility of incorrect declarations of non-preferential origin, in particular to evade anti-dumping duties imposed on imports from certain countries. For example, it is possible to smuggle valuable raw materials, such as silicon, from China to Germany with the help of forged documents, in which, instead of China as the country of origin, Vietnam, for example, is stated as the country of origin, in order to evade the anti-dumping duties.
d) Incorrect data on weight and quantity
The number and type as well as the weight of the goods belong to the mandatory information in the customs declaration. One of the typical areas of application regarding incorrect information on weight is the customs declaration for the release for free circulation of agricultural products, since the amount of agricultural duties, in addition to the nature, depends in whole or in part on the weight or quantity of the goods.
e) Incorrect information in the case of returned goods (Art. 203-207 UCC [Art. 185 - 187 Customs Code, 844 et seq. Customs Code - Implementing Regulation]).
In this case, incorrect information is provided about the use abroad, about the reimportation period and / or the reason for the withdrawal.
The re-importation of means of transport is a popular option. Import duties are shortened here primarily because repairs and installations are carried out in third countries, so that the means of transport are not re-imported in the same condition and therefore lose their status as returned goods. An exception exists only in the case of repairs that have become necessary and have not increased the value of the goods (Art. 203 UZK [Art. 846 Customs Code - Implementing Regulation]) or in the case of a mileage-based inspection that has become due during the foreign journey.
3. smuggling in travel
Smuggling in travel comprises the evasion of import duties. There is no legal definition of travel traffic in either European or national law. In European customs law, there are only various sources that address travel in connection with customs treatment. According to Art. 1 No. 40 UCC (Art. 236 Customs Code Implementing Regulation), a traveler on importation is a person who temporarily enters the customs territory of the Community where he is not normally resident, as well as a person who returns from a temporary stay abroad to the customs territory of the Community where he is normally resident. Article 41 of the Customs Exemption Regulation exempts goods in the personal luggage of travelers from import duties and refers to Council Directive 2007/74/EC of 20.12.2007. According to Article 4 of this Directive, Member States shall exempt goods imported in the personal luggage of travelers from VAT and excise duties on the basis of thresholds or ceilings, provided that they are non-commercial imports. The term personal luggage is defined in Art. 5 of this Directive, the term non-commercial in Art. 6 of the Directive. In addition, Section 1 (2) of the Entry Clearance Regulation (EF-VO) contains definitions of personal luggage (No. 5) and travel accessories (No. 6).
Accordingly, travel occurs when goods are moved across borders by persons temporarily staying in or outside the customs territory. The character of the journey is irrelevant.
Customs law provides for certain preferential substantive and procedural rules for travel. For example, in Art. 135 CCC [Art. 38 (4) Customs Code] (exemptions from the carriage requirement for travel), Art. 139 CCC [Art. 41 Customs Code] (facilitated presentation for goods carried by travelers), Art. 138 (a) CCC-DA [Art. 225 Customs Code Implementing Regulation] (possible declaration for goods for non-commercial purposes in the personal luggage of travelers), Art. 136(1)(b) UCCD [Art. 536 Customs Code Implementing Regulation] (temporary admission for personal effects of travelers) and in particular Art. 109, 124 [Art. 230, 233 and 234 Customs Code Implementing Regulation] (fictitious presentation and accepted declaration and release for duty-free goods carried in the personal luggage of travelers).
Whereas in the past, the typical way of committing the offense was to deny the customs officer's question about dutiable goods in a way that was untruthful, this is less common today, as European customs law makes exceptions to the principles for recording the movement of goods due to administrative economy and the management of increased traffic volumes. Nowadays, the traveler uses the green exit for goods exempt from declaration, simply passes through the customs office without spontaneously making a customs declaration, or crosses the customs border with goods exempt from carriage.
In the case of smuggling in travel, the tax offence within the meaning of Section 370 (1) AO consists of a breach of customs regulations. The following infringements are possible:
a) Violation of the obligation to carry
With regard to the obligation to carry, there are exceptions in travel in accordance with Section 5 of the Customs Ordinance. According to Section 5 (1) No. 1 (a) of the Customs Ordinance, goods for non-commercial purposes contained in the personal luggage of the traveler are exempt from the obligation to transport. According to Section 5(1)(1)(b) of the Customs Regulation, this also applies to personal effects of travelers within the meaning of Article 136(1)(b) of the Customs Code Implementing Regulation (CCIP) (e.g. clothing). Pursuant to Section 5(1)(1)(c) of the Customs Regulation, exemption also applies to means of transport which are normally moved by human power (e.g. bicycles) if they are exempt from import duties as returned goods or within the scope of temporary importation.
The act is tax unlawful if the exemption exceptions are used due to the lack of requirements and the customs debt would be incurred due to violation of the obligation to transport pursuant to Article 79 of the UCC (Article 202 of the Customs Code) because of the irregular shipment.
b) Violation of the opening hours
It is not possible to violate the opening hours in tourist traffic because tourist traffic is exempt from this restriction, Section 3(2) of the Customs Administration Act. Due to this exemption, travel traffic can also be cleared outside official hours for commercial goods traffic.
c) Violation of the obligation to present the goods to the authorities
According to Article 139 (1) of the CCC (Article 40 of the Customs Code), imported goods must be presented to customs. There are no particularities regarding the presentation of goods in tourist traffic. The obligation to present the goods is a tax disclosure obligation, so that the offender keeps the tax authority in ignorance of tax-relevant facts if he fails to present the goods in breach of his duty, so that the offence of Section 370 (1) No. 2 of the Tax Code is present.
d) Violation of the obligation to register
Pursuant to Art. 139 (4) UCC (Art. 45 Customs Code), the summary declaration to be lodged is regularly waived when the customs declaration is lodged. In principle, all four forms of Art. 141 (1) (a) to (c) UCC-DA (Art. 61 Customs Code) are possible for the form of the customs declaration. However, due to the special features of travel, the customs declaration is predominantly made by other means. In this case, according to Art. 141 UZK-DA [Art. 233 Customs Code Implementing Regulation] (for goods exempt from import duties according to Art. 138-140 UZK-DA [Art. 230 to 232 Customs Code Implementing Regulation]), the following implied expressions of intent may be considered: the use of the green exit for goods exempt from declaration; passing through a customs office without spontaneously making a customs declaration; crossing the border if the goods are exempt from the obligation to be transported pursuant to Article 135 UCC (38 (4) Customs Code) in conjunction with Section 2 (6) Customs Administration Act and Section 5 Customs Regulation.
If a check reveals that the declaration of intent within the meaning of Article 142 of the Customs Code Implementing Regulation (Article 233 of the Customs Code Implementing Regulation) has been made without the goods being shipped or exported fulfilling the requirements of Articles 138-140 of the Customs Code Implementing Regulation (Articles 230 to 232 of the Customs Code Implementing Regulation), these goods shall be deemed to have been shipped or exported in breach of the regulations (Article 83(2)(a) of the Customs Code [Article 234(2) of the Customs Code Implementing Regulation]).
If the conditions are not met, e.g. if the green exit is used despite dutiable goods, the customs debt is fictitious in accordance with Art. 79 UZK (Art. 202 Customs Code). The customs declaration is made at the time of the real act, i.e. by using the green exit. However, dutiable goods can still be declared when passing the green exit. However, this must be done so clearly that any confusion with the implied customs declaration of duty-free goods due to the use of the green exit is excluded. A declaration of dutiable goods after leaving the green exit is no longer possible.
The violation of the obligation to declare is always punishable under Section 370 (1) of the Tax Code. It does not matter whether the offender declares his goods incorrectly or incompletely, whether he declares upon questioning that he has nothing to declare at all, or whether he simply passes without expressly declaring anything. In that case, he would not have made a customs declaration at all, since a fictitious customs declaration is only possible with duty-free goods according to Art. 141 UZK-DA (Art. 233 Customs Code Implementing Regulation).
In the case of smuggling in tourist traffic, success occurs in the form of a reduction in duty pursuant to Section 370 (1) and (4) of the Tax Code. However, due to a reduction in duty, the customs duty exemptions in travel must be observed. In particular, the Customs Duty Exemption Ordinance and the Entry Exemption Ordinance. If a good falls under the duty exemption, no import duty debt is incurred, provided that the duty exemption takes effect upon its fictitious customs declaration according to Art. 141 UZK-DA and Art. 83 UZK (Art. 233, 234 Customs Code Implementing Regulation). However, this does not apply to goods subject to prohibitions and restrictions (Art. 142 UCC-DA [Art. 235 Customs Code Implementing Regulation]), as Art. 135-140 UCC-DA (Art. 225 to 234 Customs Code Implementing Regulation) do not apply in these cases. Accordingly, a shipment in breach of duty also exists, for example, if the perpetrator moves within the allowance, but the goods are, for example, a travel souvenir of ivory.
As with any tax evasion, the perpetrator of travel smuggling must act intentionally. This means that he must know all the objective circumstances of the crime, including the relevant customs regulations and the obligations arising from them. Precise knowledge of the customs regulations is not required. The so-called "parallel evaluation in the layman's sphere" is sufficient.
As recently as the 1970s, the Hessian Fiscal Court (ruling dated February 14, 1979 - VII 153/78) assumed with regard to the predecessor law that there was no intent if the traveler misunderstood the marking of the two-channel system at airport customs offices to mean that the green channel had to be used while the red channel was closed or if he simply walked thoughtlessly in the "herd of mutton" through the green channel without reading the instructions. However, this is no longer the case today. By means of a complaint, a main customs office wanted to have the question clarified as to whether the use of the green exit led to the fulfillment of the subjective facts of intentional tax evasion or reckless tax evasion. The Federal Fiscal Court (ruling dated March 16, 2007 - VII B 21/06) did not consider this question to be in need of clarification. In the opinion of the Federal Fiscal Court, it is clear and unambiguous, and consequently does not require clarification, that a traveler must obtain knowledge of the meaning of the red and green exits at airports if he does not already have this knowledge. If he does not do so and uses the green exit in the assumption that he will be able to make the customs declarations expected of him when or even after passing through this exit, he generally commits at least reckless tax evasion. A traveler with at least average perceptive faculty notices the corresponding indications at the respective exits and understands their meaning.
With regard to intent, however, the criminal proceedings must be separated from the customs debt proceedings. If the perpetrator has transported goods in violation of the regulations, the customs debt has been incurred. For the customs debt procedure, the subjective ideas of the perpetrator are irrelevant. What is decisive is what has been objectively realized. Thus, for example, the perpetrator cannot be convicted of tax evasion for lack of intent, but is obliged to pay the incurred customs debt.
e) Example case
Soccer manager R travels back to Germany after a visit to Qatar. On arrival in Germany (by way of a flight), he passes through the green exit. He is then confronted by customs officials, who discover that R is carrying two high-value watches made of precious metal with a total value of around EUR 100,000.
R transported the goods in breach of the regulations pursuant to Article 83 (2) (a) UCC (Article 234 (2) Customs Code Implementing Regulation). This results from the fact that the two watches with a total value of around EUR 100,000.00 were subject to declaration. R far exceeded the exemption limit for air and sea travel in the amount of EUR 430.00 pursuant to Section 2 No. 5 of the Entry Exemption Regulation. Accordingly, the customs debt arose pursuant to Art. 79 UZK (Art. 202 Customs Code) upon passing the green exit. R is therefore liable to prosecution for tax evasion pursuant to Section 370 (1) No. 2 of the German Fiscal Code (AO).
Calculation of the customs duty:
The customs duty is calculated as follows: Customs amount + import sales tax
The customs amount is the customs value (purchase price + transport costs to the Community territory) multiplied by the respective customs rate. In this case the customs value is 100.000,00 EUR. The customs duty rate is determined by the respective customs tariff, which depends on the goods. In the present case, the customs code for precious metal watches is 91012100000. According to this code, the customs duty is 4.5%, but not less than 0.3 EUR per piece and not more than 0.8 EUR per piece. This means that the standard duty rate is 4.5% of the value of the goods, but the unit value is to be taken as a basis if this is more favorable for the debtor. This is the case here. For R it is more favorable to use the unit value of 0.8 EUR (equal to 1.60 EUR) for two watches than the 4.5% of 100,000.00 EUR (equal to 4,500.00 EUR). The amount of duty is therefore 1.60 EUR, since the number of pieces is the same.
The import sales tax is calculated as follows:
Import VAT value x import VAT rate. The current import VAT rate is 19%. The import VAT value results from the customs value + the customs amount + possible transport costs within the EC. In the present case the customs value is equal to 100.000,00 EUR. Plus a customs amount of 1,60 EUR results in 100.001,60 EUR. This import VAT value times the import VAT rate of 19% results in an import VAT amount of 19.000,30 EUR.
Accordingly, a total levy (customs duty amount + import VAT amount) of EUR 19,001.90 (EUR 1.60 + EUR 19,000.30) would have had to be paid.
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