Customs guarantee
With the customs guarantee ( English customs bond , French guarantee douanière ) the certifying takes guarantor the liability for the proper payment of deferred taxes by the taxpayer .
General
Customs guarantees are a subspecies of the control guarantees that the deferred claim of the general financial management of control obligations , excise secure and duties. The tax authorities can defer claims from the tax debt relationship in whole or in part if the collection when due would mean considerable hardship for the tax debtor and the claim does not appear to be endangered by the deferral; As a rule, the deferral should only be granted upon application and against provision of security ( Section 222 AO ). A guarantee or a promise of debt ( Section 241 (1) No. 7 AO) from a “suitable tax guarantor” is also recognized as a security deposit ( Section 244 (2) AO). This includes the credit institutions and insurance companies approved by the Federal Finance Directorate that are allowed to take on these guarantees.
The risk of customs payments can be covered by third parties ( e.g. credit institutes, insurers) in the form of a customs guarantee. The creditworthiness of the credit institutions / insurers should give the customs administration the opportunity to fall back on them if the taxpayer cannot pay.
Deferral of customs payments
The postponement of customs payments prevents importers from having to pay customs duties during customs clearance at a time when the imported goods cannot even be sold. Only through the later sale is the duty calculated in the sales price collected by the importer and could be transferred to the customs administration.
If a customs debt arises as a result of the placing of goods under a customs procedure , the goods are only released to the declarant in accordance with Article 195 (1) of the Union Customs Code (UZK) when the amount of the import or export duty has been paid or a security corresponding to this amount has been provided. Art. 110 b) UCC therefore provides that the parties involved or a third party (such as a freight forwarder ) can be granted a deferment of payment on request and under certain conditions. This is dependent on a security deposit according to Art. 95 UZK.
Of great practical importance is the ongoing deferment of payment according to Art. 110 b) UZK, in which the duties do not have to be paid immediately upon customs clearance. Payment will be made at a later point in time and all imports made during this period will be aggregated. The current deferral of payment is only to be approved if, due to the regular release of non-Union goods into free circulation with the use of the authorized deferred payment, there is an economic need both for the economic operator and for the customs administration for this payment facility.
If freight forwarders or importers maintain a public customs warehouse (Art. 210 ff. UZK), they can defer their import duties ( import duties ) until the goods are resold or processed. The deferral is necessary because the import duties are due at the time of import; however, the importers only collect the sales proceeds from which they can pay the import duties when they are resold. A deferral bridges the period between the actual due date of the import duties and receipt of the proceeds, accelerates the processing of transactions and the transport.
The authorization for ongoing deferment of payment requires that a security deposit according to Art. 95 UZK has been granted by the local main customs office . Deferred payment without security can only be granted for import sales tax , which can be deducted in full as input tax .
Legal issues
The holder of the transit procedure has to provide security in accordance with Art. 233 para. 1 c) UZK. The security is fundamentally valid throughout the European Union . According to Art. 89 (8) UZK, no security is to be provided when goods are transported by air, the Rhine, the Rhine waterways, the Danube and the Danube waterways and through permanently installed transport facilities .
According to Art. 91 Para. 1 b) UZK, the security can be provided through a declaration of commitment by a surety. According to Art. 94 Para. 1 UCC, this must be an accredited credit institution, financial institution or insurance company. The surety undertakes in writing to pay the secured amount of the import or export duties and other taxes corresponding to the customs debt.
The UCC leaves the design of the recourse in the case of a customs guarantee to the national legal systems. The same applies to the recourse of the final seller according to Art. 4 of Directive 1999/44 / EG ( Consumer Goods Directive).
Legal consequences
The guarantee case occurs with customs guarantees if the customs debtor does not or not completely meet his duty to pay customs duties when due . The customs administration may only request the amount of the guarantee if the main secured liability exists and the assumed security case has occurred. Then the customs administration only has to assert what was the payment condition of the customs guarantee (so-called formal guarantee case ). Furthermore, the customs administration must prove the conclusiveness of the main claim (so-called material guarantee case ). In doing so, it has to prove that the customs claim secured by a customs guarantee is due. If the prerequisites are met, the customs administration may claim the surety from the given customs guarantee for monetary payment.
Then the surety from the customs bond is obliged to make payment. With the payment of the customs guarantee in accordance with § 774 Paragraph 1 BGB, the claim of the customs administration against the customs debtor is transferred to the surety by virtue of the law ( legal session ).
The customs authorities release the customs guarantee immediately if the customs debt or another tax debt has expired or can no longer arise (Art. 98 (1) UCC).
International
According to Article 69 of the Swiss Customs Act (ZG), the customs debt arises, among other things, when the customs office accepts the customs declaration. If the Federal Customs Administration (FCA) grants payment facilities, the customs debtor must secure the customs claim in accordance with Art. 76 Para. 1 ZG by depositing cash, depositing safe and marketable securities or issuing a customs guarantee. A certain customs claim ( individual guarantee ) or all customs claims against the customs debtor ( general guarantee) can be secured through the customs guarantee in accordance with Art. 77 ZG . The guarantee must be drawn up on an official form; the maximum amount of liability is to be entered here.
In Austria - as in all EU member states - the UZK applies , so that the customs deferral described for Germany is also applied in Austria.
Individual evidence
- ^ Siegfried Georg Häberle / Menno Aden, Handbook of letters of credit, collections, export documents and bank guarantees , 2000, p. 724
- ↑ Directive 1999/44 / EC will be repealed from January 1, 2022 by Directive (EU) 2019/771 (online trade in goods) .
- ↑ cf. BGH NJW 1984, 2456 , 2457
- ↑ BGH NJW 1997, 1435
