Smuggling in tourist traffic

Smuggling in tourist traffic: Hamburg tax court, judgment of 02.03.2023 - 4 K 114/22

Contrary to the principle of submitting a customs declaration in electronic form, it is possible to declare goods in tourist traffic by using the green exit "declaration-free goods" by implied behavior. Among other things, the goods must be exempt from import duties in accordance with Art. 41 of Regulation (EC) No. 1186/2009. The Directive 2007/74/EC listed therein was implemented in Germany with the Entry Exemption Regulation (EF-VO). Exemption from import duties within the meaning of Section 1 (1) sentence 3 ZollVG (customs duties, import sales tax and other excise duties such as alcohol tax, tobacco tax, coffee tax, etc.) is based on the maximum quantities and value limits in Section 2 EF-VO. For air travelers aged 15 and over, travel souvenirs up to a value of €430 are exempt from import duties (Section 2 (1) No. 5 (b) EF-VO). The value of goods may not be divided when applying this value limit (Section 2 (2) EF-VO).

In the case decided by the Hamburg Fiscal Court in its judgment of 02.03.2023 (case reference: 4 K 114/22; published in Zeitschrift für Zölle 2024, 51 et seq.), the claimant entered the customs territory of the Union together with his husband. Upon arrival, he passed through the green exit "Goods not subject to declaration" ("green channel") at the airport with his luggage. Among other things, he was carrying new binoculars and a pair of new shoes.

While passing through the "Green Channel", the plaintiff was checked by officers of the control unit of the defendant Main Customs Office (HZA). The plaintiff's husband was no longer present at this time. At the beginning of the passage through the "Green Channel", however, he was still accompanied by his husband.

The HZA left the shoes to the plaintiff as free goods and levied import duties on the binoculars. The plaintiff appealed against this and argued that the binoculars did not belong to him, but to his husband.

The tax court dismissed the claim and stated that it was not decisive "that the binoculars carried did not belong to the claimant but to his husband, as the ownership of the imported goods is irrelevant. Rather, the decisive factor is whether the goods are carried in personal luggage. Pursuant to Section 1 (2) No. 5 of the EF-VO, all items of baggage that the traveler can present to the customs office upon arrival are deemed to be personally carried baggage. The presentation is a real act and means that the goods must actually be with the traveler so that the customs office can carry out checks if necessary (see Wolffgang in Wolffgang/Jatzke, UZK, Art. 5 para. 43, 1st edition 2021). The duty-free allowance can therefore only be granted for goods that the traveler physically carries with them when passing through the "green channel" or during the inspection. The claimant carried both the shoes and the binoculars directly and physically with him, as he was carrying the two bags containing the goods."

The tax court further clarified that the binoculars could not be counted towards the plaintiff's husband's entry allowance either, "because he was not (or no longer) present when the plaintiff was approached and, in particular, when the check was carried out. Rather, he - the husband - had separated himself from the checked luggage and thus did not or no longer accompanied it. Where exactly the plaintiff's husband was during the customs inspection is irrelevant because he had left the binoculars carried by the plaintiff in any case before the customs inspection was carried out (see also Munich tax court, judgment of 6.9.2012, 14 K 1265/11, juris). A return of the plaintiff's husband to the control area would also not have changed the fact that only the plaintiff was carrying the imported goods directly with him when the control began or was carried out."

In addition to the import duties, a customs surcharge was levied in accordance with Section 32 of the Customs Administration Act (ZollVG), the so-called smuggling privilege. According to this provision, "tax offenses and tax administrative offenses (Sections 369, 377 of the German Fiscal Code) [...] shall not be prosecuted as such if import or export duties or excise duties of no more than EUR 250 in total were reduced or attempted to be reduced as a result of the offense itself or the predicate offense." (Section 32 (1) ZollVG).

In the event that a tax offense or administrative tax offense is not prosecuted due to this provision (or also due to Section 398 AO or Section 153 StPO), "a surcharge may be levied up to the amount of the import or export duties or excise duties to be determined, but up to a maximum of EUR 250." (Section 32 (3) ZollVG).

The Hamburg Fiscal Court assumed that the import duties had been reduced at least recklessly with regard to the binoculars. According to the judges, "before bringing goods, [the traveler] must obtain information about the conditions for granting entry clearance and in particular about the significance of the green exit at the airports if he is entering 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." Anyone who violates this obligation is in any case acting recklessly (if not conditionally intentionally, so that tax evasion is punishable).

The reckless tax reduction constitutes an administrative offense pursuant to Section 378 AO and was not prosecuted in the present case only because the import duties reduced by the act did not amount to more than EUR 250. Therefore, in the opinion of the Hamburg Fiscal Court, the main customs office was right to impose a surcharge in accordance with Section 32 (3) ZollVG.

In summary, it can be said that the plaintiff appears to have got off lightly. In criminal customs law, there is the special feature that the smuggling privilege applies in the case of minor reductions and tax offenses and administrative tax offenses do not result in penalties or fines. However, as soon as the value limit of the smuggling privilege is exceeded, the penalty table according to the customs regulations (StraBuDV) is applied. The resulting penalties and conditions are significantly higher than those of all state tax authorities. Anyone who evades "normal" VAT can therefore expect a significantly more lenient penalty than someone who evades import VAT (in the same amount), which is the responsibility of the customs authorities.