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An Overview
SUITS THE C-SUITE By Mark Anthony P. Tamayo
(First of 5 parts)
On 30 May 2016, President Benigno S. C. Aquino III signed Republic Act
(RA) No. 10863, otherwise known as the Customs Modernization and Tariff
Act (CMTA), which amends the Tariff and Customs Code of the Philippines
(TCCP). It will become effective on 16 June 2016 which is 15 days after it
was published in a major daily newspaper.
From a historical perspective, the first piece of tariff legislation was passed
by the United States Congress for the Philippines during the American
regime. This was known as the Philippine Tariff Act of 1909 whi ch gave
birth to the imposition of tariff on goods coming from foreign countries and
entering the Philippines.
In 1957, RA No. 1937 was crafted and passed by the Philippine Congress as
the first TCCP that codified customs laws for the country, superseding the
48-year colonial regime of the Tariff Act of 1909. It took effect on 1 July
1957.
On 11 June 1978, RA No. 1464 was signed into law (revising PD No. 34),
which, in general, strengthened the punitive force of the TCCP against
smuggling and other forms of customs fraud.
Many changes in global and regional trade policies, rules and processes
have since then developed and evolved which have been addressed
(through legislative amendments of the TCCP and administrative issuances)
on a piecemeal basis.
The new CMTA aims to modernize customs laws, rules and procedures to
take into consideration the mandatory standards of the Revised Kyoto
Convention (the blueprint for modern and efficie nt customs procedures of
the World Customs Organization [WCO] to which the Philippines is a
signatory), international agreements, recommendations from the business
sectors and industry groups as well as some of the best practices in customs
administration, among others. It seeks to transform the Bureau of Customs
(BoC) into a modern and efficient organization that is at par with global
standards.
The CMTA has both saving and repealing clauses. Laws, rules and
regulations previously issued pertaining to the importation of goods that
are consistent with the CMTA will remain valid unless the same be repealed
or amended. While those which are inconsistent are expressly repealed,
amended or modified accordingly.
This series of articles will point out some of the salient changes introduced
under the CMTA.
GOODS DECLARATION FOR CONSUMPTION
All imported goods will be subject to the lodgment of a goods declaration
(commonly known as entry declaration), which may be for consumption, for
warehousing, for admission, for conditional importation or for customs
transit, depending on the purpose.
The failure to pay duties and taxes within the 15 -day period shall result in
the imposition of a 10% surcharge (increased to 25% if delinquency lasts
for more than one year) based on the total assessed amount or balance
thereon as well as to a 20% interest per annum computed from the date of
final assessment.
After payment of duties and taxes, the importer will then hav e a non-
extendible period of 30 days (previously, 15 days from posting of notice to
claim) to claim the goods from customs custody.
If, at the time of importation, an importer does not have all the information
or supporting documents required to complete a goods declaration, the
CMTA now allows the lodging of a provisional goods declaration (PGD). The
PGD is a new concept that importers can use particularly in instances where
additional information and/or collateral documents are required to be
submitted at the border. Under this concept, an importer would have to
execute an undertaking to complete the necessary information or submit
the supporting documents within 45 days (extendible for another 45 days)
from the lodging of the PGD. Goods under PGD may be r eleased upon
posting of a security equivalent to the amount ascertained to be the
applicable duties and taxes.
(Second of 5 parts)
In last week’s article, we discussed the evolution of the Tariff and Customs
Code of the Philippines (TCCP) and briefly talked about the new rules on
goods declaration under the new Customs Modernization and Tariff Act
(CMTA).
This article will continue to discuss the changes introduced in the CMTA.
DE MINIMIS IMPORTATIONS
The CMTA acknowledges the e-commerce trend of increasing number of
small value consignments and thus, retained the provision on de minimis
values (small value importations) below which no duties and taxes will be
collected and with minimal clearance procedures, including data
requirements.
RELIEF CONSIGNMENT
Goods such as food, medicine, equipment and materials for shelter, donated
or lease to government institutions and accredited private entiti es for free
distribution to or use of victims of calamities shall be treated as relief
consignment. Relief goods are exempt from duties and taxes.
Towards this end, restrictions on customs policies are now relaxed under
the CMTA. Special procedures are now provided to facilitate their
unimpeded entry. Among these procedures are: a) lodging of a simplified
or provisional goods declaration; b) pre -arrival clearance; c) clearance
beyond business hours without corresponding charges; and d) examination
shall be in exceptional cases only.
The Department of Finance (DoF) and the Department of Social Welfare and
Development shall jointly issue implementing rules on thi s.
One of the more well-known privileges recognized under Section 800 is the
duty and tax-free importation of personal and household effects by
“returning residents” which has been defined as nationals who have stayed
in a foreign country for a period of at least six months.
The conditions for exemption (aside from the requirements that the same
should neither be of commercial quantity nor intended for barter, sale or
hire) are as follows:
· For those who have stayed in a foreign country for a period of at least 10
years, the Free on Board (FoB) or Free Carrier Arrangement (FCA) value
shall not exceed P350,000 and that the privilege is not availed of within 10
years prior to the returning resident’s arrival.
· If the stay is at least five years, the FCA or FOB value shall not exceed
P250,000 and that the privilege is not availed of within five years prior to
the returning resident’s arrival.
· If the stay is less than five years, the FCA or FoB value shall not exceed
P150,000 and that the privilege is not availed of within six months prior to
the returning resident’s arrival.
In the third part of this article, we shall discuss other changes brought
about by the CMTA, particularly the rules on related -party transactions and
penalties relating to unlawful importation and exportation, misdeclaration,
misclassification and underdeclaration of imported goods.
(Third of 5 parts)
In last week’s article, we discussed some of the changes introduced under
the new Customs Modernization and Tariff Act (CMTA), particularly the new
threshold value of those considered as small value importations, the rules
on relief consignments, and personal and household effects (including
appliances and durables) brought in by returning residents and Overseas
Filipino Workers (OFWs).
In addition to the above, the CMTA also provides the following changes:
Aside from the application of test values, the WTO agreement also
recognizes the “circumstances of sale analysis” as a remedy in proving the
absence of such influence. This remedy, which is likewise embodied under
Customs Administrative Order (CAO) No. 4 -2004 and Customs Memorandum
Order (CMO) No. 16-2010, involves showing the arm’s length nature of the
transaction by proving that the price was:
Failure to establish either of the above proofs may result i n the declared TV
to be rejected for purposes of customs appraisement and the price will be
determined using other methods of valuation in their sequential order.
· The declared value fails to disclose in full the price actually paid or
payable or any dutiable adjustment to the price; or
· When an incorrect valuation method is used; or
· The valuation rules are not properly observed.
The CMTA likewise adopts the previous rule under the TCCP, as amended,
on the existence of a prima facie evidence of fraud if the discrepancy (in
duty and tax to be paid) amounts to more than 30%.
Outright smuggling refers to the act of importing goods into the country
without complete customs-prescribed importation documents, or without
being cleared by customs or other regulatory government agencies. In this
case, imported goods are not registered at all with the BoC or other
government agencies.
Technical smuggling, on the other hand, refers to the act of importing goods
into the country by means of a fraudulent, falsified or erroneous declaration
of the goods as to its nature, kind, quality, quantity or weight. In other
words, technical smuggling takes place through un dervaluation,
misclassification or underdeclaration of the goods shipped.
The penalty is imprisonment or a fine which ranges from Php 25,000 to Php
50,0000,000 depending on the value (up to Php 200,000,000) of the goods
unlawfully imported, including duties and taxes. If the v alue (or aggregate
value) exceeds Php 200,000,000, the same shall be deemed as a heinous
crime punishable with a penalty of reclusion perpetua (imprisonment of 20
years and 1 day to 40 years) and a fine of not less than Php 50,000,000.
In the fourth part of this article, we will discuss other changes introduced
under the CMTA, particularly the new rules relating to abandonment, period
of storage in a Customs Bonded Warehouse , advance customs rulings, post
clearance audit, record keeping requirements and penalties.
(Fourth of 5 parts)
In last week’s article, we listed down some of the changes introduced under
the new Customs Modernization and Tariff Act (CMTA), particularly th e rules
pertaining to related party transactions as well as the penalties relating to
unlawful importation and exportation, misdeclaration, misclassification and
underdeclaration of imported goods.
ABANDONMENT RULES
The abandonment of imported goods can either be express or implied.
If the BoC has not disposed of the goods implied to be abandoned, the
owner or importer of goods may, within 30 days after the lapse of the
prescribed period to file the declaration (15 days, extendible for another 15
days), still reclaim the goods by complying with all legal r equirements and
paying the corresponding duties, taxes, and other charges.
On the other hand, if the BoC has already sold the goods, the proceeds of
the sale, after deduction of any duty and tax and all other charges and
expenses (such as, government stora ge charges; expenses for the
appraisal, advertisement, and sale of auctioned goods; arrastre and private
storage charges and demurrage charges; and freight, lighterage or general
average, on the voyage of importation) shall be turned over to those
persons entitled to receive them. The balance will then be deposited to a
“forfeiture fund” to be managed by the BoC which shall be used to, among
others, support its modernization program and other operational efficiency
and trade facilitation initiatives.
In the last part of this article, we will discuss the new rules on penalties
that the BoC can impose resulting from post clearance audit, record keeping
requirements, and the authority of the BoC Commissioner to compromise
any administrative case involving the imposition of fines and surcharges.
(Last of 5 parts)
In last week’s article, we listed down some of the changes int roduced under
the new Customs Modernization and Tariff Act (CMTA), particularly on the
new rules relating to abandonment, period of storage in a Customs Bonded
Warehouse, advance customs rulings, post clearance audit, record keeping
requirements and penalties.
In addition to the above, the CMTA also provides the following changes:
POST-CLEARANCE AUDIT
The CMTA states that the Bureau of Customs (BoC) may conduct a “post -
clearance audit” within three years from the date of final payment of duties
and taxes or customs clearance, as the case may be. In the absence of any
specific regulation, this provision of the CMTA can be seen as a departure
from Executive Order 155 (which placed the audit function with the
Department of Finance’s (DoF) Fiscal Intelligence Un it) as well as the audit
guidelines under DoF Department Order (DO) Nos. 11 -2014 and 44-2014.
The penalties for failure to pay correct duties and taxes on imported goods,
as may be found during post-clearance audit, are now categorized into two
degrees of culpability, as follows:
RECORD-KEEPING REQUIREMENT
The CMTA states that all importers are required to keep relevant importation
documents, at their principal place of business, for a period of three years
from the date of final payment of duties and taxes or customs clearance,
as the case may be. This provision of the CMTA can be seen as a reversion
to the old rules and a departure from the audit guidelines under DoF DO
Nos. 11-2014, which set the record retention period to 10 years from the
date of importation.
MOVING FORWARD
The provisions introduced under the CMTA are basically trade facilitation
measures envisioned to hasten, simplify, harmonize and clarify importation
and exportation laws, rules and procedures. These changes provide an
opportunity for the BoC to effectively implement these new rules towards
achieving its primary role as a trade facilitation institution. A simplified and
streamlined trade procedure could result in higher volume of trade which
will positively impact on revenue collection.