Declaration in Customs

Rectification and/or invalidation

Introduction

In view of the new organic structure created by the Resolution of January 13, 2021, of the Presidency of the State Tax Administration Agency, on the organization and attributions of functions in the Customs and Excise Area modified by the Resolution of March 21, 2022, of the Presidency of the State Tax Administration Agency (hereinafter, Resolution) and the distribution of powers between the different bodies of the area, it is appropriate to clarify certain issues relating to the processing of the rectification and invalidation of customs declarations at the request of the interested party.

This topic was the subject of analysis in NI GA 08/2016 of July 28, on rectification and invalidation of declarations, although, at that time, the cases in which rectification of the declaration is appropriate versus those in which the declaration must be invalidated were not defined.

 The provisions of information note 02/2023 of 21 February, on powers regarding rectification and invalidation of declarations transcribed in this third section of this index, are not applicable to the customs declaration for release for free circulation with respect to a shipment benefiting from an exemption from import duties in accordance with Article 23, paragraph 1, or Article 25, paragraph 1, of Regulation ( EC ) No 1186/2009 (declaration H7), due to its special characteristics that require a specific analysis. It is also not applicable to transit declarations.

We distinguish 2 types of procedures: Invalidation of declarations and Rectification of declarations

Procedure for invalidating declarations

The invalidation of declarations is regulated in article 174 of Regulation ( EU ) 952/20132 (hereinafter CAU ) and 148 of the Delegated Regulation ( EU ) No. 2015/2446 of the Commission (hereinafter, RDCAU ).

A customs declaration can be invalidated, before release, upon request of the interested party (22 CAU ), generally in 2 cases:

• When the goods are to be immediately included in another customs regime.

 In this case, invalidation is conditional on the submission of a customs declaration for the customs regime in which the goods would have been declared had the error not occurred.

• When, due to special circumstances, inclusion in the regime is no longer justified.

 In this case, the declaration is simply invalidated and the goods return to their situation prior to the submission of the declaration, depending on whether they are goods with Union status or not. For procedural purposes, the rules on customs decisions set out in Articles 22 et seq. of the UCC apply.

Additionally, a declaration may be invalidated after lifting in the cases and with the requirements provided for in article 148 RDCAU .

From the point of view of customs debt, when the customs debt has been entered, the invalidation entails the automatic return of the amount of import or export duties that has been paid (art.116.1 CAU ), while, if the customs debt has not been paid, when the customs declaration is invalidated, the debt is extinguished (124.1.d) CAU ).

On the other hand, even if it falls outside the scope of the previously described invalidations, when the rectification of a declaration with prepayment is requested, between the time of clearance and release, the declaration must be invalidated and a new one submitted, due to the implications of this process in customs accounting, and this technical invalidation must be carried out by the competent body for rectification.

 Likewise, when a rectification of the export declaration with indirect exit through another Member State after the release is requested, the declaration must be invalidated and a new one submitted due to the implications in the Automated Export System (AES), corresponding to carry out this technical invalidation to the competent body for the rectification (See the link to the Commission guides)

Procedure for Rectification of Declarations (art. 173 CAU )

In accordance with the provisions of article 173 CAU the data of the customs declarations may be modified before the release or within a period of three years from the date of admission of the customs declaration, upon request of the interested party within the limits of section 2 of said article.

In the customs field, the procedure is governed by the provisions relating to customs decisions (articles 22 et seq. CAU ) and post-lifting control (article 48 CAU ).

For the purposes of VAT and other taxes that, where applicable, are settled with the customs declaration, the rectification will be governed by the provisions of article 130 of Royal Decree 1065/2007, of July 27, which approves the Regulation. General of the actions and procedures of tax management and inspection and of development of the common rules of tax application procedures (RGAT) which, in turn, refers to what is regulated in articles 126 to 128 in relation to rectification of self-assessments.

According to this regulation, the rectification procedure ends by:

• decision (article 22 CAU ) or resolution, which may include a provisional settlement when it affects any element determining the quantification of the debt (article 125.1 RGAT) or the recognition of the right to a refund (article 128.2 RGAT), or
• with the notification of the start of a verification or investigation procedure that includes the obligation referred to in the rectification (article 48 CAU and 128.3 RGAT), in accordance with the provisions of section 4.

The rectification may therefore lead to liquidation, repayment/forgiveness, have a neutral financial effect or the initiation of a verification or investigation procedure.

Entitlement to request rectification or invalidation of the customs declaration

The following are authorized:

• the declarant in accordance with the provisions expressly set forth in articles 173 and 174 of the CAU
• the importer, the exporter and, where applicable, the depositor in their capacity as taxpayers of VAT
• the direct representative or any other person provided that they prove their status as voluntary representatives in accordance with the provisions of article 46.2 of the General Tax Law 58/2003. Notwithstanding the foregoing, in the case of direct representatives, voluntary representation shall be presumed and their accreditation shall not be necessary in the case of requests for rectification of the customs declaration after the release referred to in section Eleventh.1. letter d) of the Resolution. These requests do not affect the debt nor imply assumption or recognition of obligations on behalf of the obligor and are therefore considered acts of mere procedure and representation may be presumed in accordance with section 3 of article 46 of the LGT .

Bodies responsible for invalidation procedures

According to the Resolution on competencies:

1. Invalidation : The invalidation of the declaration, prior to or after its release, is the responsibility of the body responsible for processing the declaration itself. That is, to the Customs Administrations (section Eleven of the Resolution) or the Decentralized Headquarters in the provinces where there are no Administrations (section Tenth 1. a) of the Resolution
2. Rectification of declarations: The rectification of the declaration before the release is the responsibility of the Customs Administrations (section Eleven of the Resolution), or of the decentralized Headquarters in the provinces where there are no Administrations (section Tenth 1. a) of the Resolution), before which the declaration has been submitted.

The authority to manage and control the correction of customs declarations after the release of the goods corresponds, in general, to the decentralized Headquarters (section Tenth.1.f) of the Resolution) of the tax domicile of the obligated parties (section Thirteenth.4 of the Resolution), except when its verification by the competent control body is considered appropriate.

However, corrections to customs declarations or re-export declarations submitted to territorial bodies of the Regional Customs and Excise Department of the Canary Islands or the autonomous cities of Ceuta and Melilla, will be the responsibility of the competent body of such Department depending on the place of submission of the declaration or of such autonomous cities, respectively (Thirteenth.4 f) of the Resolution).

 For the purposes of competition, the following shall be considered obligated:

• Import (chapter 2 Resolution DUA ): recipient (box 8);
• Export (chapter 3 Resolution DUA ): shipper/exporter (box 2);
• Linkage to the deposit regime (chapter 5 Resolution DUA ): depositor (box 8)

In the event of an error in the declaration of personal items, the authority responsible for the recipient or sender/exporter who, according to the application, should appear in the declaration is responsible, regardless of the erroneously declared item.

Special features of certain declarations and rectifications

• Requests for rectification of export declarations must be made electronically as long as the conditions set out in Appendix III of the Resolution of the DUA are met.
• The rectification of the certificate of origin provided for in article eleventh.1.c) of the Resolution of January 13, 2021 refers to the rectifications of data in the certificate of origin because they are contradictory with those that appear in the customs declaration, the correct ones being those that appear in the latter. This case may make it necessary to rectify the DUA, for example, to incorporate the new certificate number or to incorporate into the customs declaration information that is not necessary to authorize the requested customs regime but is necessary for the correct issuance of the certificate of origin. and that it did not appear in the customs declaration (the certificate is always issued based on the information in the customs declaration). This rectification of the declaration is the responsibility of the Administration that rectifies the certificate of origin.

Without prejudice to the provisions of the preceding paragraph, any modification of a customs declaration may require the rectification of a previously issued certificate of origin, this being a case of competence of the decentralized headquarters of the tax domicile of the obligated party (section Tenth.1.f) of the Resolution). The headquarters will inform the corresponding Customs and Excise Administration, which is responsible for the rectification of the certificate of origin, of the rectification.

• If you request rectification of any of the data provided in section Eleventh.1. d) of the Resolution, the Administration will be competent to modify this data and all other data that may be necessary to carry out the modification thereof. In the event that the request for rectification includes other data that are not related to those provided for in Eleventh.1.d), the rectification will be processed by two separate procedures, one resolved by the Administration and the other by the Headquarters.

If the rectification of data other than those provided for in Eleventh.1.d) is requested, the Headquarters will be competent to rectify not only the requested data but also those provided for in Eleventh.1.d) that must necessarily be modified as a result of the request.