Customs monitoring experiment: administrative and legal characteristics

Agamagomedova Saniyat ORCID: 0000-0002-8265-2971 Senior Research Fellow, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 saniyat_aga@mail.ru Other publications by this author

Introduction

External challenges and threats of the modern world impose new requirements on the forms and methods of public legal influence on various spheres of public relations. The customs sphere is traditionally associated both with the implementation of the basic economic functions of the state and with ensuring the security of the state in the international space. The strengthening of the sanctions regime against Russia, the transformation of existing and the construction of new logistics chains of foreign trade turnover, the need to fulfill social and other obligations of the state in the context of the economic crisis – all this determines the need to optimize the main functions of customs authorities at the present stage, the most important among which is customs control. Modern conditions necessitate the use of qualitatively new customs control tools designed, on the one hand, to ensure the country's defense and national security, on the other hand, to stimulate economic activity and legitimate behavior of business entities. One of these tools should be customs monitoring, an experiment on which has been launched in Russia since April 3, 2023. At the same time, if previous theoretical developments in the field of prospects for the use of monitoring in customs practice were based, for the most part, on the designation of monitoring in strategic planning documents and its intended administrative and legal support ^[1], then in today's situation, the institute of customs monitoring has to a certain extent "overgrown" the regulatory framework, has undergone administrative and legal regulation, so far, however, it does not have a systematic and comprehensive character. From this point of view, it seems relevant to provide an administrative and procedural justification for customs monitoring, determine its place in the customs control system, highlight its specifics and prospects for use in the activities of customs authorities.

Legal basis

The mention of customs monitoring is found in strategic and other documents long before the start of the experiment on its implementation. Thus, the Strategy for the Development of the Customs Service of the Russian Federation until 2030 (hereinafter referred to as the Strategy), adopted in 2020, considers customs monitoring in the context of new approaches to the organization and conduct of customs control after the release of goods. There are several aspects of the justification of customs monitoring for the period of Strategy development.

Firstly, its developers positioned customs monitoring as a customs control tool that allows a comprehensive assessment of the activities of certain categories of audited persons for identification of customs risks and determination of their level, the results of which ensure simplification of administrative procedures and elimination of negative consequences, including in the form of voluntary payment of customs duties, as well as the realization of the possibility of using the results of customs monitoring by the audited persons for self-assessment and minimization of customs risks.

Secondly, it was planned to use customs monitoring along with the use of international standards of the World Customs Organization and customs audit to popularize the use of voluntary systems of assessment of compliance with customs legislation by participants in foreign economic activity.

Thirdly, one of the guidelines of the Strategy (target 23 - improving the system of comprehensive prevention of violations of mandatory requirements using digital technologies) includes, among other things, improving approaches to monitoring and analyzing the impact of applied preventive measures on the level of compliance with the rule of law in the field of customs.

Thus, the Strategy refers customs monitoring to the tools of customs control, more precisely, control after the release of goods; connects it with voluntary systems of assessment (self-assessment) of the activities of controlled persons, with digitalization of control and prevention of violations of mandatory requirements; as its goals, it calls the minimization of customs risks.

In the Strategy and other documents, customs monitoring is often used simultaneously with the concept of customs audit. They are united, in our opinion, by the lack of regulatory and legal regulation in the current customs legislation and the attribution to relatively new instruments of control and supervisory activities of a fiscal orientation. Thus, according to the action plan for the period 2021-2024 for the implementation of the Strategy for the Development of the Customs service of the Russian Federation until 2030, the introduction of the institute of customs audit and customs monitoring technology as additional tools of customs control will affect the completeness of the collection of customs duties, while not incurring additional financial burden on the audited persons.

The proximity of the tools under consideration is confirmed by scientists who consider monitoring and auditing as a tool to achieve a balance of private and public interests in tax and customs relations ^[2].

In preparation for the experiment on customs monitoring, a number of regulatory legal acts were developed and approved, and necessary amendments and additions were made to certain acts. Thus, the Government of the Russian Federation was given additional powers in this regard. Currently, the Government of the Russian Federation determines the procedure, terms and conditions for conducting an experiment on monitoring by customs authorities of information available to them and received from persons participating in this experiment from goods accounting systems, as well as the circle of persons participating in this experiment, the place of its conduct and the procedure for preparing a report on the results of this experiment (Federal Law No. 314-FZ dated 07/14/2022 "On Amendments to Article 120 of the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation" // "Assembly of Legislation of the Russian Federation", 07/18/2022, No. 29 (Part III), Article 5281).

Let's pay attention to the differences in terminology used in relation to the institution in question: the Strategy and a number of other documents use the term "customs monitoring", in Federal Law No. 314-FZ dated 07/14/2022 "On Amendments to Article 120 of the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation The Decree of the Government of the Russian Federation dated 02/16/2023 No. 240 "On conducting an experiment on monitoring by Customs authorities of information available to them and received from persons participating in this experiment from goods accounting systems" (hereinafter – Decree of the Government of the Russian Federation No. 240) uses the wording "monitoring by customs authorities of information available in their at the disposal and received from the persons participating in this experiment, from the accounting systems of goods. " Moreover, the latter wording in the Decree of the Government of the Russian Federation No. 240 is equated with the concept of customs monitoring. For convenience, we will also use the concept of customs monitoring in this article.

One of the main regulatory documents regulating the conduct of the experiment on customs monitoring was the Decree of the Government of the Russian Federation No. 240, which approved the Regulation on conducting an experiment on monitoring by customs authorities of information available to them and received from persons participating in this experiment from the accounting systems of goods (hereinafter - the Regulation).

The Government of the Russian Federation has essentially approved temporary rules for interaction between customs authorities and participants in the experiment for customs control purposes, and has determined the Ministry of Finance of the Russian Federation and the Federal Customs Service of Russia as federal executive authorities authorized to conduct the experiment.

In addition to the above-mentioned regulatory and other acts, it is planned to introduce a number of departmental regulations (orders of the Federal Customs Service of Russia), which are currently being registered with the Ministry of Justice of the Russian Federation.

The Federal Customs Service must, within three months from the date of entry into force of the Decree of the Government of the Russian Federation No. 240, approve: the form of the decision of the customs authority to monitor the information available to it and received from persons participating in the experiment from the accounting systems of goods; the form of the conclusion of the customs authority on the results of monitoring the information available to it at the disposal and received from the persons participating in the experiment, from the accounting systems of goods.

 It is possible that after the end of the experiment, it will be necessary to make changes and (or) additions to the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation."

We believe that legislation on state control (supervision) and tax legislation, in which the concept of monitoring is already actively used, had a certain indirect impact on the development of the institute of customs monitoring. As for tax monitoring, some authors testify to the translation of the experience of tax monitoring into the customs sphere ^[3].

It seems that this looks quite reasonable from the point of view of the fact that traditionally there is a certain plane of intersection of customs and tax control, which has a financial nature. In this regard, customs monitoring is seen as a tool of customs control in terms of ensuring the fiscal function of the state. At the same time, it is impossible to deny the existence of a non-financial component of customs control ^[4].

The analysis of foreign scientific literature indicates the use of monitoring concepts in both the customs ^[5-6] and tax spheres ^[7-10]. Moreover, in the latter case, it is often positioned as a means of state support for business ^[7].

Information support for customs monitoring

By June 1, 2023, the Federal Customs Service was instructed to ensure the completion of the Unified Automated Information System (UAIS) of customs authorities for the implementation of the experiment.

The participant of the experiment must have a product accounting system that allows:

- keep separate records of transactions with foreign goods and goods of the EAEU;

- take into account the goods from the moment they are accepted for accounting (placement under the customs procedure) until the moment of write-off;

- to form information for submission to the customs authority on the basis of data from primary accounting documents, accounting registers, declarations for goods.

Participants in the customs monitoring experiment

Participants in the experiment on customs monitoring can be: authorized economic operators and participants of the industrial cluster. The register of the latter is maintained on the website of the Ministry of Industry and Trade of Russia (Geoinformation System. Industrial parks, technoparks, clusters. The official website of the Ministry of Industry and Trade of Russia. https://gisp.gov.ru/gisip /#!en/clusters/ (mod. date: 04/14/2023)).

Let's pay attention to the fact that initially only authorized economic operators were registered to participate in the experiment. Currently, the persons participating in the experiment can be represented as two statuses, which are, of course, privileged.

Participation in the experiment of these persons is carried out on a voluntary basis (paragraph 4 of the Regulation).

The possibility of participation in the experiment on customs monitoring of only two categories of persons, as well as its extension only to the customs procedure of release for domestic consumption, indicates the limited nature of the use of this control tool.

An analysis of the foreign practice of applying customs monitoring indicates its differentiation in relation not to economic entities, but to certain categories of goods ^[5]. As a general trend, it is necessary to highlight the connection of customs monitoring with risk minimization, a risk-oriented approach to management in the customs sphere ^{[6, 11-12]}. In addition, we note the fact that authorized economic operators, in accordance with international standards of customs regulation, have always had a privileged status, including when passing customs control ^[11].

The period of the experiment and the frequency of data collection

The duration of the customs monitoring experiment is from April 3, 2023 to November 1, 2024.

The object of monitoring will be foreign goods that have been imported into the Eurasian Economic Union (EAEU) for domestic consumption. Information on customs declaration indicators will be collected quarterly by the EAIS of customs authorities in cooperation with the accounting systems of the participants in the experiment. To participate in the monitoring, you must submit an application no later than June 30, 2024.

During the period of the experiment, information and software tools of the EAIS of the customs authorities automatically collect information on the indicators of customs declaration (foreign economic activity) of the person participating in the experiment on a quarterly basis (clause 8 of the Regulation).

This information includes 13 items and is approved by Decree of the Government of the Russian Federation No. 240 (Appendix No. 1 of the Regulation). Among them are: a decrease in the average level of the index of customs payments in the analyzed quarter by more than 15 percent compared to the previous quarter and (or) the same period last year; the availability of information on deliveries to the person participating in the experiment of goods for which no minimization measures were applied at the stage of customs declaration in the analyzed quarter risks in accordance with risk profiles; availability of information on the supply of goods to the person participating in the experiment from countries from which goods had not previously been supplied to the Russian Federation, and others.

Preferences for the participants of the experiment

There are two preferences for participants in the customs monitoring experiment: the possibility of non-reporting by an authorized economic operator and exemption from on-site customs inspections.

The Regulation provides that if, upon receipt of an opinion on the results of customs monitoring, a person has not voluntarily eliminated signs of violations of the law, the customs authority decides on the application of forms of customs control after the release of goods and measures ensuring customs control (with the exception of on-site customs inspection) (paragraph 23 of the Regulation).

Customs monitoring in the customs control system

It seems that one of the important characteristics of the customs monitoring experiment is the reflection of a certain consistency (administrative and procedural consistency) between centralized and decentralized spheres of state control and supervision. Scientists rightly point out that today a separate system of administrative and administrative-procedural legal relations has been formed in the Russian legal system, in which, along with the centralized sphere of control and supervisory legal relations, numerous decentralized spheres of control and supervisory legal relations function (including, for example, the sphere of tax control, currency control, banking supervision, etc.) ^{[13, p. 8]}.

 The customs sphere is the sphere of application of a number of types of state control and supervision, the most important of which is customs control. The monitoring institute is used both in the centralized sphere of control and supervision (according to Article 96 of the Federal Law "On State Control (Supervision) and Municipal Control in the Russian Federation", it means a special regime of remote state control (supervision)), and in other decentralized spheres (tax monitoring as a form of tax control (section V.2. "Tax control in the form of tax monitoring" of the Tax Code of the Russian Federation).

As for the place of customs monitoring in the customs control system, it is not necessary to talk about the embeddedness of this institution in the tools of customs control yet. Unlike the provisions of legislation regulating the centralized sphere of state control (supervision) (where monitoring is defined as a special regime), as well as certain decentralized spheres of control and supervisory activities, in particular tax control (where monitoring is a full-fledged form of tax control), customs monitoring has not yet acquired such a status. Given that the tools of the modern customs control system include forms and measures to ensure customs control, and the list of forms of customs control is closed and established at the EAEU level, it seems logical to present customs monitoring as a measure to ensure customs control. We believe that the proposal of a number of authors on the possibility of classifying it as a form of customs control ^[3] is difficult from the point of view of implementation, primarily from the standpoint of the conditions for making changes to the customs legislation of the EAEU level.

Of course, customs monitoring belongs to the new mechanisms of customs control ^[14], while it has elements of self-control ^[15]. It is no coincidence that in the Strategy, when designating the institute of customs monitoring, the emphasis was placed precisely on the possibility of self-assessment of persons controlled by customs authorities. And finally, customs monitoring is a natural product of digitalization of customs control, its financial component. It is no coincidence that today experts in the field of financial control recognize that control in a broad sense is an information process with a feedback mechanism carried out in the form of supervision, monitoring, auditing, accounting and statistical accounting, and the modern model of state financial control is based on the redistribution of control functions between different bodies, as well as on the differentiation of methods of its implementation ^{[16, p. 10]}.

Conclusion

The customs monitoring currently carried out by the customs authorities of the Russian Federation as part of the experiment clearly reflects the modern vector of transformation of the control and supervisory function of state bodies. This measure, which ensures the conduct of customs control, applies so far to a small part of the controlled entities. At the same time, it testifies to the introduction of the principles of solidarity, involvement, and trust into the mechanisms of interaction between the state and business ^[2]. The Institute of Customs Monitoring has yet to take its place in the system of customs control, digital customs control, control that is invisible to business and financially burdensome for the state. Administrative procedures for customs monitoring are still being formed and are being normatively fixed. Their goal should be to assist participants in foreign economic activity, stimulate their responsible behavior, economic activity and integrity.