Declaration Institution with Regret (Customs Law; 234/3)
Summary
Penalties applied to transactions that cause tax loss are in the Customs Law No. 4458, Articles 234-238 . It is arranged among the articles.
234. For the non-compliances listed in the article, the Legislature has deemed it appropriate to give the taxpayers the advantage of a large discount on the penalty.
This is a condition of the non-compliance being detected by the customs administration and notified by the preliminary declarant. In this case, the penalties in question are applied at the rate of 10%.
In our article, we will examine the conditions for applying this discount rate.
Key Words:
The institution of declaration with regret, prior notice, self-declaration. notice, spontaneous notification, contradiction on the same subject.
1. Introduction
Article 234 of the Customs Law is an important article. Because transactions that cause tax loss are counted and the penalties to be applied are counted.
For this reason, it is necessary to take a look at the provisions of Article 234 related to our article.
What Causes Tax Loss? Penalties to be Applied to Transactions
a) If there is a discrepancy in the elements constituting the Customs Tariff specified in Article 15 or in the measurements such as number, head and weight that are the basis for taxation, and the difference between the import taxes calculated according to the declaration and the import taxes that should be collected according to the inspection results If it exceeds 5%, a fine of three times this difference is charged, apart from import duties.
c) In case of incomplete value declarations arising from material calculation errors with a difference not exceeding 5% in amount according to the sales unit, a fine equal to half of the tax difference is charged, in addition to the import taxes for these differences. .
2. As a result of the declaration made regarding the goods subject to the provisions of the inward processing regime, the processing regime under customs control and the temporary import regime with full exemption, and the inspection and inspection or post-delivery control; If the differences specified in the first paragraph are detected, an administrative fine equal to half of the tax difference is imposed.
The phrase 15% in this paragraph is defined by Law No. 7190 (07.11.2019 t., 30941 s.R.G.). It has been changed to 10%.
By the way, this paragraph; The institution of declaration with regret is also named as advance notice, self-declaration, application for regret.
Now, let's see the legislation regarding the application of this paragraph in the following items.
2. Letter of the General Directorate of Customs dated 22.09.2014
The General Directorate of Customs has sent the instruction letter dated 22.09.2014 to all Regional Directorates of Customs and Trade regarding the implementation of Article 234/3 of the Customs Law.
In the article; “... from various incidents that have been reported to our General Directorate recently, after the non-compliance with the transaction carried out by a company in a customs administration is detected by the customs administration in question, it is reported to this customs administration for the same type of non-compliance transaction it carried out at another customs administration, as if it had detected the said non-conformity itself. It has been understood that the company applied for the implementation of the third paragraph of Article 234 of the said Law, and since the applied customs administration was not aware of the determination made by the customs administration that detected the non-compliance, this request of the company was deemed appropriate and 234/3 application was carried out.
Such In order to prevent abuses;
- In applications made by companies to your Regional Directorate or its connections in order to benefit from the provision of the third paragraph of the said article for the violations specified in the first or second paragraphs of Article 234 of the Customs Law No. 4458, it is absolutely necessary to contact your other connection administrations and/or or other Regional Directorates and their connections, to investigate immediately whether a determination has been made for the applicant company within the last 6 months regarding the non-compliance on the same subject, The provisions of the third paragraph of the article should not be applied,
it is necessary...”
the following are included.
3. Letter of the General Directorate of Customs dated 13.10.2014
However, there is no information regarding the way this research was carried out in the letters received from various customs administrations. It has been understood that there are hesitations.
It is possible to use customs databases during the research in question, but the Regional Directorates should decide how the research will be carried out...”
He gave instructions as follows.
4. The letter of the General Directorate of Customs dated 23.11.2015
This article is an important article. The General Directorate wanted to clarify the expression "contradiction on the same subject" by giving examples.
The expression "contradiction on the same subject" does not only mean that the subject that forms the basis of the contradiction is related to the same article of the legislation or that the act is the same.
The point to be considered here is that the contradiction is,
- Whether they are part of the same commercial transaction regarding customs transactions carried out in the same or different customs administrations, or,
- Whether they are part of the transaction carried out within the scope of the same determination, or,
- Continuity by the obliged party It is to accurately determine whether the statement manifests itself in the form of incomplete declaration.
For example; If the incomplete value declarations regarding mold costs are related to declarations processed in multiple customs administrations, the discrepancy should be evaluated as a part of the same commercial transaction. Or, if an under-declaration of one of the value elements determined by a report occurs at different customs or in different declarations at the same customs, or if it is determined that the GTIP of a good subject to import from different customs administrations is different from the declared one, the discrepancy must be evaluated as part of the transaction carried out within the scope of the same determination. .
In addition, the correction requests made by the declarants in accordance with Article 121/3 of the Customs Regulation must be evaluated within the framework of Article 234/3 of the Customs Law...”
.
5. Letter of the General Directorate of Customs dated 04.07.2018
The General Directorate of Customs sent the instruction letter dated 04.07.2018 to the Istanbul Customs Consultants Association regarding the implementation of Article 234/3 of the Customs Law.
In the letter; "...Requests to benefit from the provision 234/3 are evaluated by the Regional Directorates on a case-by-case basis, taking into account the conditions and development of each case, within the framework of the matters specified in the letters dated 22.09.2014, 13.10.2014, 23.11.2015..."
A statement was made as follows.
6. Letter of the General Directorate of Customs dated 19.11.2019
With this letter, the General Directorate has stated that the investigation of regulated penalties on the same subject has been expanded by using the collection tracking program by the customs administration in order to prevent the spontaneous notification investigation correspondence from taking a long time and the finalization of the applications from being prolonged. .
7. How Article 234/3 is Implemented in Customs Administrations
For the violations specified in the first or second paragraphs of Article 234 of the Customs Law No. 4458, the obliged parties apply to their Regional Directorates or their connections to benefit from the provision of the third paragraph of the said article.
It is being investigated whether a determination has been made for the applicant company in other connection administrations and/or other Regional Directorates and connections regarding the same issue within the last 6 months.
Customs databases/customs system are used during the investigation.
During the investigation, customs databases/customs system are used. p>
Customs Law 234/3. Requests to benefit from the provision of article are evaluated by the Regional Directorates on a case-by-case basis, taking into account the conditions and development of each case, within the framework of the matters specified in the letters dated 22.09.2014, 13.10.2014, 23.11.2015.
In the implementation of the provision of this article, it is especially checked whether there is an "inconsistency in the same subject".
In determining the inconsistency;
- Whether it is part of the same commercial transaction regarding customs transactions carried out in the same or different customs administrations.
- Whether it is a part of the transaction carried out within the scope of the same determination,
- Whether it manifests itself as a continuous under-declaration by the obliged party,
is checked.
p>
However, it is understood that in some customs administrations, the expression "inconsistency on the same subject" is used in a very broad sense, and this situation causes problems in practice.
Inconsistency on the same subject. For this reason, it is not sufficient that the subject matter that constitutes the basis for the non-compliance is related to the same article of the legislation or the act is the same.
The non-compliance is part of the same commercial transaction, is part of the transaction made within the scope of the same determination, or is manifested as a continuous under-declaration by the obliged party. In cases where it is done, it is considered as a violation on the same issue and therefore Article 234/3 of the Customs Law. The regret provision of the article should not be applied.
In addition, regardless of the reasons for the application, any regret application made by the Customs Administrations more than once in the last 6 months is considered as a continuous under-declaration.
Therefore, a regret decision made on the same issue in a different subject or in a different commercial transaction. Customs Law 234/1, on the grounds that the application, the application for regret has been made more than once in the last 6 months and the deficiency is continuous.
In addition, in the investigation of whether a determination has been made in the last 6 months, even if the penalty in the other administration is 234/3 of the Customs Law, regardless of the content of the transaction, 234/1 instead of the repentance provision. Within the scope of the article, 3 times the penalty is regulated.
On the other hand; freight, storage, discount, demurrage etc. Since the deficiencies in the declarations made in the payments are individual transactions, questioning whether the same type of transaction has been carried out in another administration causes the loss of the right arising from the law.
8. Conclusion and Evaluation
The penalties applied to transactions that cause tax loss are 234-238 in the Customs Law No. 4458. It is arranged among the articles.
234. For the non-compliances listed in the article, the Legislature has deemed it appropriate to give the taxpayers the advantage of a large discount on the penalty.
This is a condition of the non-compliance being detected by the customs administration and notified by the preliminary declarant. In this case, the penalties in question are applied at the rate of 10%.
The phrase 15% in this paragraph has been changed to 10% by Law No. 7190 (07.11.2019 t., 30941 s.R.G.).
By the way, this paragraph; The institution of declaration of regret is also named as advance notice, self-declaration, application of regret.
The letter of the General Directorate of Customs dated 23.11.2015 is an important letter.
The General Directorate wanted to clarify the expression "contradiction on the same subject" by giving examples.
The expression "contradiction on the same subject" only refers to contradiction It does not mean that the underlying issue is related to the same article of the legislation or that the act is the same.
The point to be considered here is that the contradiction is related to customs transactions carried out in the same or different customs administrations. Whether they are part of the same commercial transaction or,
- Whether they are part of the transaction within the scope of the same determination, or,
- It is the accurate determination of whether it manifests itself in the form of persistent under-declaration by the obliged party.
For example; If the incomplete value declarations regarding mold costs are related to declarations processed in multiple customs administrations, the discrepancy should be evaluated as a part of the same commercial transaction. Or, if an under-declaration of one of the value elements determined by a report occurs at different customs or in different declarations at the same customs, or if it is determined that the GTIP of a good subject to import from different customs administrations is different from the declared one, the discrepancy must be evaluated as part of the transaction carried out within the scope of the same determination. .
In addition, the correction requests made by the declarants in accordance with Article 121/3 of the Customs Regulation should be evaluated within the framework of Article 234/3 of the Customs Law...”
For the violations specified in the first or second paragraphs of Article 234 of the Customs Law No. 4458, the obliged parties apply to their Regional Directorates or their connections in order to benefit from the provision of the third paragraph of the said article.
Other connection administrations and/or other authorities. Regional Directorates and their connections are investigating whether a determination has been made for the applicant company regarding the non-compliance on the same issue within the last 6 months.
During the research, customs databases/customs system are used.
Article 234 of the Customs Law. /3. Requests to benefit from the provision of article are evaluated by the Regional Directorates on a case-by-case basis, taking into account the conditions and development of each case, within the framework of the matters specified in the letters dated 22.09.2014, 13.10.2014, 23.11.2015.
In the implementation of the provision of this article, it is especially checked whether there is an "inconsistency in the same subject".
In determining the inconsistency;
- Whether it is part of the same commercial transaction regarding customs transactions carried out in the same or different customs administrations.
- Whether it is a part of the transaction carried out within the scope of the same determination,
- Whether it manifests itself as a continuous under-declaration by the obliged party,
is checked.
p>
However, it is understood that in some customs administrations, the expression "inconsistency on the same subject" is used in a very broad sense, and this situation causes problems in practice. It is not sufficient for the non-compliance to be related to the same article of the legislation or for the act to be the same.
In cases where the non-compliance is part of the same commercial transaction, is part of the transaction made within the scope of the same determination, or manifests itself as a continuous under-declaration by the obliged party, it will be considered as a non-compliance on the same subject. and therefore Article 234/3 of the Customs Law. The regret provision of the article should not be applied.
In addition, any regret application made by the Customs Administrations more than once in the last 6 months, regardless of the reasons for the application, is evaluated as a persistent under-declaration.
Therefore, the application for a leniency decision made on a different subject or on the same issue in a different commercial transaction is rejected under Customs Law 234/1 on the grounds that the leniency application has been made more than once in the last 6 months and the deficiency is continuous.
In addition, in the investigation of whether a determination has been made in the last 6 months, even if the penalty in the other administration is 234/3 of the Customs Law, regardless of the content of the transaction, 234/1 instead of the repentance provision. Within the scope of the article, a 3-fold penalty can be issued.
On the other hand; freight, storage, discount, demurrage etc. Since deficiencies in declarations made in payments are individual transactions, questioning whether the same type of transaction has been carried out in another administration may result in the loss of rights arising from the law.
On the other hand; In particular, the instruction letter dated 23.09.2014 and numbered 2888552 of the General Directorate of Customs, which is still in force and explains the method of investigation to be carried out by the Customs Administrations and/or Regional Directorates when a regret application is made by the obliged parties, the instruction letter numbered 11911354 dated 23.11.2015 issued later, etc. It is thought that it would be appropriate and appropriate to re-evaluate other articles on the subject in a way that would allow for today's current transactions, in order to ensure uniformity in practice.
References;
- Customs Law and Regulation No. 4458
- Letter of the General Directorate of Customs dated 22.09.2014
- Letter of the General Directorate of Customs dated 13.10.2014
- Letter from the General Directorate of Customs dated 23.11.2015
- Letter from the General Directorate of Customs dated 04.07.2018
- Letter from the General Directorate of Customs dated 19.11.2019
