Declaration in Customs
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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 21 March 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 advisable to clarify certain issues related to the processing of the rectification and invalidation of customs declarations at the request of the interested party.
This issue was analyzed in NI GA 08/2016 of July 28, on rectification and invalidation of declarations, although, in that At the time, the cases in which the 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 February 21, 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 into free circulation with respect to a consignment benefiting from exemption from import duties in accordance with Article 23(1) or Article 25(1) of Regulation ( EC ) No 1186/2009 ( statement 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
Declaration Invalidation Procedure
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 ), in general in 2 cases:
- When the goods are to be immediately included in another customs regime.
In this case, the invalidation is conditional on the submission of a customs declaration for the customs regime in which the goods would have been declared if the error had 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 status prior to the presentation 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 can be invalidated after release in the cases and with the requirements provided for in article 148 RDCAU .
From the point of view of the customs debt, when the customs debt has been entered, the invalidation entails the ex officio refund of the amount of import or export duties that has been paid (art.116.1 CAU ), while, if the customs debt had not been paid, when the customs declaration is invalidated, the debt is extinguished (124.1.d) CAU ).
On the other hand, even though it is outside the scope of invalidations previously described, when the rectification of a declaration with prior payment is requested, between the time of dispatch and release, the declaration must be invalidated and a new one presented, due to the implications of this process in customs accounting, with this technical invalidation being carried out by the competent body for rectification.
Likewise, when a rectification of the export declaration with indirect exit through another member state is requested after release, the declaration must be invalidated and a new one presented due to the implications in the Automated Export System (AES), and this technical invalidation must be carried out by the body. competent for rectification (See the link to the Commission guides)
Declaration Rectification Procedure (art. 173 CAU )
In accordance with the provisions of article 173 CAU the data of customs declarations may be modified before release or within a period of three years from the date of admission of the declaration in customs, 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-release 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.
In accordance with this regulation, the rectification procedure ends by:
- decision (article 22 CAU ) or resolution, which may include a provisional liquidation when it affects some determining element of the quantification of the debt (article 125.1 RGAT) or the recognition of the right to a refund (article 128.2 RGAT), or
- with notification of the initiation 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.
Rectification may therefore lead to liquidation, refund/condonation, have a neutral financial effect or the initiation of a verification or investigation procedure.
Legitimacy to request rectification or invalidation of the customs declaration
They are legitimized:
- the declarant in accordance with the express provisions of articles 173 and 174 of CAU
- the importer, the exporter and, where applicable, the depositor in their capacity as taxpayers of VAT
- the direct representative or any other person as long as they prove their status as voluntary representatives in accordance with the provisions of article 46.2 of General Tax Law 58/2003. However, in the case of direct representatives, voluntary representation will be presumed and their accreditation will not be necessary in the cases 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 do they imply assumption or recognition of obligations on behalf of the obligor and therefore are considered mere procedural acts and representation can be presumed in accordance with section 3 of article 46 of the LGT .
Bodies competent in Invalidation procedures
According to the Resolution on powers:
- Invalidation : The invalidation of the declaration, prior or after release, corresponds to the body competent to process the declaration itself. That is, to the Customs Administrations (Eleventh section of the Resolution) or the Deconcentrated Headquarters in the provinces where there are no Administrations (Tenth section 1. a) of the Resolution
- Rectification of statements: The rectification of the declaration before release is the responsibility of the Customs Administrations (section Eleventh of the Resolution), or of the decentralized Headquarters in the provinces where there are no Administrations (section Tenth 1. a) of the Resolution), to which the declaration has been presented.
The competence for the management and control of the rectification of customs declarations after release 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 verification by the competent control body is considered appropriate.
However, rectifications of customs declarations or re-export declarations presented to territorial bodies of the Regional Customs and Special Taxes Unit of the Canary Islands or of the autonomous cities of Ceuta and Melilla will correspond to the competent body of said Unit depending on the place. of presentation of the declaration or of such autonomous cities, respectively (Thirteenth.4 f) of the Resolution).
For the purposes of the competition, the following will be considered obligatory:
- 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 case of error, in the declaration of personal elements, the jurisdiction corresponds to the competent body in relation to the recipient or consignor/exporter which, in accordance with the request, should be included in the declaration, the one declared erroneously being indifferent.
Specialties 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 eleven.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 previous paragraph, any modification of a customs declaration may require the rectification of a previously issued certificate of origin, this being a case of jurisdiction of the decentralized headquarters of the tax domicile of the obligor (section Tenth.1. f) of the Resolution). The headquarters will inform the corresponding Customs and Excise Administration of the rectification, which is responsible for rectification of the certificate of origin.
- If the rectification of any of the data provided for in section Eleventh.1 is requested. d) of the Resolution, the Administration will be competent to modify these data and all others that are necessary to carry out the modification of those. In the event that the rectification request includes other data that have no relationship with those provided for in Eleventh.1.d), the rectification will be processed through two separate procedures, one being 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 should necessarily be modified as a consequence. of the request