Customs surcharge only in case of intent or recklessness, but not “simple” negligence in the “green channel

Supplementary comment on the ruling of the Hamburg Fiscal Court of 02.03.2023 - 4 K 114/22 on the smuggling privilege under Section 32 ZollVG

In the case decided by the Hamburg Fiscal Court in its judgment of 02.03.2023 (case reference: 4 K 114/22; published in the Zeitschrift für Zölle 2024, 51 et seq.), the claimant entered the customs territory of the Union and was checked with his luggage in the green exit “declaration-free goods” (“green channel”) at the airport He was carrying binoculars that he had purchased in a third country and had not paid customs duty on when entering the country.

The main customs office determined the import duties for the binoculars and at the same time imposed a surcharge in accordance with Section 32 (3) of the Customs Administration Act (ZollVG) in the amount of the import duties.

In the Zeitschrift für Zölle (ZfZ 2024, 139), RiOLG Ebner rightly emphasizes that the Hamburg Fiscal Court did not make it sufficiently clear that the customs surcharge pursuant to Section 32 ZollVG may only be levied if a tax offence has been committed and is not prosecuted only because the reduced import duties do not exceed the amount of EUR 250 On closer inspection, however, the Hamburg Fiscal Court does not find such a tax offense, as it only states in its ruling

"With regard to this administrative offense, the plaintiff can also be accused of at least negligence because he should have informed himself about the conditions for granting the entry exemptions before bringing the goods to Germany. In particular, a traveler must be aware of the significance of the green exit at the airports if he enters Germany from a third country with goods for which it is at least possible that they must be declared and for which import duties must be paid (see decision of the Federal Fiscal Court of March 16, 2007 VII B 21/06, BFHE 216, 468, on reckless tax evasion)."

The alleged “negligence” of the plaintiff is not sufficient for the accusation of reckless tax evasion according to § 378 AORecklessness requires more than mere “normal” negligenceRather, the perpetrator must act with particular, i.e. “gross” negligenceIn the case decided, this was not obvious, in particular because the binoculars in question were not the property of the plaintiff, but of his accompanying husbandRegarding the specific circumstances of the inspection, the Hamburg Tax Court stated in its ruling

"At the beginning of the passage through the ‘Green Channel’, he was (still) accompanied by his husband[...] At the time the plaintiff was approached for the check and when the check was carried out, the plaintiff's husband was not (or no longer) present.

The fact that the personal entry exemption

“can only be claimed by persons who either physically carry the goods directly with them or who are physically present when the check is carried out”

is by no means self-evident - at least for taxable citizens - and was also considered worthy of discussion by the Hamburg Fiscal Court

In his comment in the Zeitschrift für Zölle, Ebner rightly states that, in the case of simple negligence, the Hamburg Fiscal Court did not refer to the tax offense of endangering import duties pursuant to Section 382 (1) no. 1 AO in conjunction with Section 30 (4) no. 2 AO.§ (Ebner refers to § 30 para. 4 no. 1 ZollV, but this provision presupposes that the person concerned “contrary to Article 39 para. 1 or 2 does not inform the customs authority or does not inform it in good time that an obligation to transport goods in accordance with Article 38 para. 1 cannot be fulfilled due to an unforeseeable event or force majeure”However, the presentation of the goods referred to in Section 30 (4) No. 2 was omitted).

"It is true that this can ‘only’ be committed negligently, i.e. recklessness is not a prerequisite, unlike in Section 378 (1) sentence 1 AOHowever, the provisions referring to Section 382 AO in Section 30 (4) to (7) ZollV continue to refer to the CC, which expired completely on April 30, 2016, and therefore violate the principle of 'nulla poena sine lege' - they should now refer to the UCC.

Accordingly, merely negligent “smuggling” in tourist traffic - at least until the revision of Section 30 of the Customs Ordinance - is not subject to sanctions, i.e. is neither an administrative offense nor subject to a customs surcharge.

Ebner's concluding remark also deserves approval:

"The Hamburg case would have provided an opportunity to further differentiate the basic case law on the ‘green exit’ for practical purposes, above all: which cases remain for the ‘simple’ negligence at the ‘green exit’, which is, after all, also considered possible in principle by the BFHIf too much emphasis is placed on the duty to inquire before using the 'green channel', there is a risk of 'automatically' affirming reckless conduct.

From a practitioner's point of view, this danger seems to be realized in 100 percent of all cases in the work of the criminal and administrative fine offices of the main customs offices