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LETTER OF THE FEDERAL CUSTOMS SERVICE OF THE RUSSIAN FEDERATION

of December 30, 2011 No. 01-11/65437

About the direction of the overview of practice of consideration of claims

We direct the overview of practice of consideration of FCS of Russia of claims of physical persons and legal entities to decisions, actions (failure to act) of customs authorities in the field of customs affairs for 2011 for use in work.

The overview is subject to bringing to data of legal divisions, and also the structural divisions realizing functions of customs authorities in the field of customs affairs.

First deputy head colonel general of Customs Service V. M. Malinin

The overview of practice of consideration of FCS of Russia of claims of physical persons and legal entities to decisions, actions (failure to act) of customs authorities in the field of customs affairs

1. The obligation on payment by the payer of customs duties, taxes stops from the date of write-off of payment amount by credit institute from its settlement account.

The Sheremetyevsky customs carries out customs control after release of goods. Due to the elicited fact of failure to pay customs payments to A Ltd the requirement about payment of customs duties, taxes is exposed.

Due to the lack of information on execution at the scheduled time of the requirement about payment of customs duties, taxes by Sheremetyevsky customs the decision on money recovery in indisputable procedure is made; collection orders on write-off from accounts of A Ltd of money are sent to the relevant bank. Money was transfered to account customs authority.

According to Sheremetyevsky customs, the applicant breaks completion date of the requirement about customs payment in this connection based on the act of detection of the fact of failure to pay or incomplete customs payment the requirement about payment of the penalty fee added till day of execution by the organization of obligation for payment of customs duties, taxes is exposed.

In FCS of Russia the claim of A Ltd according to which arguments the requirement of Sheremetyevsky customs about customs payment (penalty fee) is illegal as, according to the applicant, the organization at the scheduled time and in full performed the requirement for customs payment arrived, having transfered to account the Federal Treasury according to the payment order the necessary amount.

By article 117 of the Federal Law of November 27, 2010 N 311-FZ "About customs regulation in the Russian Federation" (further - the Federal Law on customs regulation) it is determined that the obligation on payment of customs duties, taxes is considered performed, in particular, from the moment of cash write-off of the payer from the account of the payer in bank.

Cash write-off from the account of the payer is performed based on the settlement documents constituted according to the Rules of specifying of information in fields of settlement documents on transfer of taxes, charges and other payments in budget system of the Russian Federation approved by the order of the Ministry of Finance of the Russian Federation of November 24, 2004 of N 106 N and Regulations on clearing settlements in the Russian Federation (the letter of the Central bank of the Russian Federation of October 3, 2002 N 2-P, зарег. in the Ministry of Justice of the Russian Federation on December 23, 2002, рег. N 4068, further - Regulations on clearing settlements).

The payment order (settlement document) according to Item 3.1 of the Regulations on clearing settlements represents the order of the account holder (payer) to the bank servicing it which is drawn up, in particular, in document type on paper to transfer certain sum of money to the account of the receiver of means opened in this or other bank. The payment order is performed by bank in time, stipulated by the legislation, or in shorter time established by bank account agreement or determined by the business customs applied in banking practice.

Obligation pay legally established taxes and fees, fixed by article 57 of the Constitution of the Russian Federation accepted on national vote on December 12, 1993 has the special nature caused by the public nature of the state and the government, connected with compulsoriness of withdrawal of tax (collection). In the course of execution of this obligation take part, except the payer of collection, credit institutes, state bodies in this connection the payer of collection cannot bear responsibility for actions of all organizations participating in multistage payment process and transfers of taxes and fees in the budget.

The constitutional obligation of each payer on payment of charges shall be considered performed while withdrawal of the part of its property intended for payment in the budget as collection actually happened. Such withdrawal happens at the time of write-off by bank from the settlement account of the payer of collection of appropriate means on account of this collection. After write-off from the settlement account the property of the taxpayer is already actually withdrawn, i.e. the tax, collection is paid.

Based on stated follows that the obligation of the legal entity on customs payment, taking into account the constitutional regulations, and also regulations of the customs and tax legislation stops payment of customs payment by it from the date of write-off of payment by credit institute from the settlement account of the payer irrespective of time of transfer of the amounts for the corresponding budget or off-budget account.

In the case under consideration, it agrees to the payment order which is available in set of documents cash write-off from the account of A Ltd on account of debt repayment on demand about customs payment of Sheremetyevsky customs is made by bank at the scheduled time that proves to be true put down according to Item 3.8 of the Regulations on clearing settlements in the field of the settlement document "Written off with сч. payments." date of cash write-off in this connection the requirement about payment of penalty fee is illegal.

2. Absence when giving in customs authority of the claim of the documents confirming powers of the CEO who signed the complaint made for the benefit of the foreign legal entity, and also submission of the copies of the agreement on commercial representation and the power of attorney which are not certified properly on representation of interests of the foreign legal entity is the basis for refusal in consideration of the claim of the applicant in essence.

In FCS of Russia the claim of M LLC to the decision of the Siberian customs authority on refusal in consideration of the claim in essence arrived. The organizations certified by seal and the signature of the CEO of M LLC of the copy of the agreement of commercial representation and the apostilled power of attorney issued to M LLC by the foreign legal entity (Germany) on representation of its interests, the copy of the order of M LLC on prolongation of powers of the CEO of society, the certified extract from the decision of the founder of M LLC on prolongation of powers of the CEO were applied to materials of the claim.

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