Analysis of judicial practice in cases of administrative offenses detected during customs control after the release of goods

Kleimenova Anastasiia Nikolaevna PhD in Law Associate Professor; Department of Customs Law; Russian Customs Academy 4 Komsomolsky Ave., Lyubertsy, Moscow region, 140015, Russia a.shashkina@customs-academy.ru Other publications by this author

Mishin Konstantin Dmitrievich Postgraduate student; Department of Customs Law; Russian Customs Academy 140182, Russia, Moscow region, Zhukovsky, Gudkova str., 3 kons.trust@gmail.com

In recent years, the legal institute of customs control after the release of goods has occupied one of the leading places in the customs control system, since the main principles of modern international trade are the simplification of administrative barriers when moving goods across customs borders and reducing the time for customs operations. With a decrease in the verification actions carried out at the stage of declaring goods, such as: the list of documents required for customs declaration, the release date of goods and other operations, the risk of violation of the customs legislation of the EAEU and the legislation of the Russian Federation on customs regulation increases. Customs control after the release of goods allows to ensure compliance with the interests of the state in these circumstances. In this regard, we agree with the opinion of S.A. Agamagomedova, who substantiates the value of state control and supervision as the ability to ensure the protection of legally protected values with minimal interference of public authorities in controlled activities ^[2].

A.N. Shashkina rightly pointed out the need to improve the administrative and legal regulation of customs control after the release of goods, including related to the need to identify, prevent and suppress violations of customs legislation and reduce negative judicial practice in cases of appeal against decisions taken by customs authorities based on the results of customs control after the release of goods (A.N. Shashkina Administrative and legal regulation of customs control after the release of goods // abstract for the application.PhD in Law, 2015). In general, predicting the trajectory of the development of the customs service of the Russian Federation, it is obvious that the emphasis of the legal regulation of customs relations is shifting from legal restrictions to legal incentives, i.e. to encourage subjects of customs legal relations to conscious lawful and super-lawful behavior, which allows satisfying the interests of the subject by providing him with certain benefits, privileges, simplifications, immunities, deferrals and other benefits by the state ^[6]. Customs control after the release of goods provides the possibility of such democratization and simplification of the customs legislation of the EAEU by the possibility of checking goods transported across the customs border of the EAEU within three years after its release ^[13].

Many works of economic scientists are devoted to the study of customs control after the release of goods ^{[5, 8, etc.]}, the problematic aspects of administrative responsibility in the field of customs are also studied in detail ^{[3, 7, 9, 10, 11]}.

The Strategy for the Development of the Customs service until 2030 establishes that a qualitatively new level of customs control has now been provided after the release of goods. In particular, a risk-based approach to the selection of control objects has been introduced; the effectiveness of verification measures has increased while reducing their number; the administrative burden on bona fide participants in foreign economic activity has been reduced, etc. (Decree of the Government of the Russian Federation dated 05/23/2020 No. 1388-r <The development strategy of the Customs Service of the Russian Federation until 2030> // Collection of Legislation of the Russian Federation, 06/01/2020, No. 22, Article 3572.). The listed criteria certainly increase the effectiveness of post-release control, while providing more comfortable conditions for law-abiding participants in foreign economic activity. But the annual results of control after the release of goods allow us to conclude that it is too early to talk about the "transparency" of the movement of goods based on mutually beneficial cooperation between business and customs, since the indicators of the number of detected violations of customs legislation are increasing. Thus, as a result of the implementation of verification measures in 2022, 6.5 thousand cases of administrative offenses and 362 criminal cases were initiated by customs and other state bodies on the identified facts (the official website of the Federal Customs Service of Russia: https://customs.gov.ru/). In 2023, according to the results of control after the release of goods, violations in the amount of 35.8 billion rubles were revealed (28% more than in the same period of 2022 – 28.0 billion rubles) (Official website of the Federal Customs Service of Russia: https://customs.gov.ru/).

The main form of customs control after the release of goods is customs inspection: 1,940 customs inspections were carried out in 2022 alone, and the average budgetary efficiency of one inspection increased from 7.6 million rubles in 2021 to 9.6 million rubles in 2022 (Official website of the Federal Customs Service of Russia: https://customs.gov.ru /), i.e. customs control after the release of goods is a means of detecting offenses ^[12].

Traditionally, the largest number of committed offenses detected during control after the release of goods is associated with an unreliable declaration (Article 16.2 of the Code of Administrative Offenses of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation)).

Table 1. Analysis of judicial practice (arbitration courts) on appealing decisions of customs authorities on bringing to administrative responsibility under Part 2 of Article 16.2 of the Administrative Code of the Russian Federation

Based on the conducted sample analysis of judicial practice on appeals against decisions of customs authorities on bringing to administrative responsibility in cases of administrative offenses identified in the process of customs control after the release of goods, the following conclusions were obtained:

1) the main forms of customs control carried out after the release of goods are verification of documents and information and customs inspection. In particular, the desk customs inspection makes it possible to effectively identify violations of the customs legislation of the EAEU and the legislation of the Russian Federation on customs regulation;

2) the vast majority of complaints against the decisions of the customs authorities on bringing to administrative responsibility for false declaration remain unsatisfied;

3) the most frequent subjects of appeal are:

– the decision of the customs authority to change the classification code of the goods;

– the decision to adjust the customs value;

– improper application by the customs authorities of the norms of substantive law, violation of the norms of procedural legislation;

In 2016, A.N. Shashkina (Kleimenova) identified the most common subjects of appeal against decisions taken based on the results of customs control after the release of goods, these include: the decision to adjust the customs value of goods and the decision on the classification of goods in accordance with the Customs Code of the EAEU ^[1]. In the seven years since the publication of this work, the reasons for appeals against decisions of the customs authorities remain the same.

4) the most common cases of false declaration of goods are the following illegal acts:

– incorrect determination of the customs value of goods aimed at underestimating the amount of customs payments to be paid, in particular: incorrect inclusion in the structure of the customs value of the costs of transporting goods; not including additional charges in the form of licensing and other similar payments for the use of intellectual property objects in the structure of the customs value; provision of invalid documents containing information about the customs value products;

– indication of the HS code that does not correspond to the transported goods, which has a lower customs duty rate.

Cancel the decisions of the customs authorities on bringing to administrative responsibility in cases identified during customs control after the release of goods for the following reasons:

1. Appeal against the decision of the customs authority to change the classification code of the goods. Basically, such decisions are made not in favor of the declarant, but cases of incorrect determination of the classification code by customs are not uncommon (for example, cases: No. A56-73370/2022 of 10/28/2023; No. A19-21910/2022 of 10/04/2023).

2. The absence of the composition of an administrative offense (for example, the decision of the Ninth Arbitration Court of Appeal of July 11, 2023 in case No. A40-223891/2022; the decision of the Arbitration Court of the Moscow Region of October 27, 2023 in case No. A41-40072/2023).

According to the second point, the Resolution of the Constitutional Court of the Russian Federation No. 9-P dated 03/05/2024 "On the case of checking the Constitutionality of Part 2 of Article 16.2 of the Code of Administrative Offences of the Russian Federation in connection with complaints from Gazpromneft Lubricants Limited Liability Company and VIREM RUS Limited Liability Company" is of great importance for law enforcement practice, in which an explanation is given about the possibility of bringing the declarant (customs representative) to administrative responsibility under Part 2 of Article 16.2 of the Administrative Code of the Russian Federation only if an unreliable declaration led to a change in the customs value and a decrease in the amount of customs duties in respect of this product.

Of course, the presence of qualifying signs (the consequence of an unreliable declaration is exemption from customs duties and taxes, underestimation of their amount, or the possibility of the occurrence of these circumstances) is directly provided for in the disposition of Part 2 of Article 16.2 of the Administrative Code of the Russian Federation, but in practice this norm is not always applied uniformly. In science, opinions are also expressed about the controversial nature of this offense. Thus, E.V. Sevostyanova notes that, taking into account the law enforcement activities of customs authorities, the objective side of an administrative offense under Part 2 of Article 16.2 of the Administrative Code of the Russian Federation is the most contested of the elements of the offense both in pre-trial and in court ^[10]. Following the studied rule of law, scientists pointed out that there is no administrative liability under Part 2 of Article 16.2 of the Administrative Code of the Russian Federation for the statement of false information (for example, about the classification code of goods according to the Customs Code of the Customs Union) if, as a result of their adjustment, the amount of customs duties and taxes payable decreases compared to that declared by the declarant, since there are no negative consequences for the economic interests of the state and such an act is not illegal (there is no fact of exemption from payment of customs duties, taxes or underestimation of their amount) ^[4].

Despite the material nature of the objective side of the administrative offense, responsibility for which is established by Part 2 of Article 16.2 of the Administrative Code of the Russian Federation, law enforcement officers (customs authorities and courts) are brought to administrative responsibility for false declaration and in the absence of material consequences, which contradicts the meaning of the law.

Thus, in case No. A41-40072/2023 dated October 27, 2023, the customs authority initiated proceedings on an administrative offense against Major Custom LLC on the false declaration of goods when revealing the fact of distribution of transport costs in the structure of the customs value disproportionately to the gross weight of the declared goods (Part 2 of Article 16.2 of the Administrative Code of the Russian Federation). The legal entity did not agree with the decision of the customs authority to bring to administrative responsibility and appealed to the Arbitration Court, which established the following facts:

1) as a result of incorrect indication of information about the gross weight of goods, transportation costs were redistributed not only towards an increase in the customs value of goods for these items, but also towards a decrease in the customs value of goods for other items;

2) the total weight of the goods has not changed and the total amount of customs payments has remained unchanged;

3) the violation caused only a redistribution of transport costs between goods in the structure of the customs value of goods and did not lead to an underestimation of the customs value of goods;

4) the act in question does not contain the composition of an administrative offense, which is a circumstance precluding proceedings on an administrative offense.

This example is typical, so it is important to emphasize that the discrepancy between the actual content of the rule of law and its interpretation has led to a rather heterogeneous and contradictory judicial practice. Thus, some arbitration courts, based on the fact that the composition provided for in Part 2 of Article 16.2 of the Administrative Code of the Russian Federation is material and involves causing damage to the budget of the Russian Federation in the form of unpaid customs payments, recognized it illegal to bring declarants to administrative responsibility in situations similar to cases involving applicants, at the same time in law enforcement practice there were and the opposite positions of the courts (Resolution of the Constitutional Court of the Russian Federation dated 03/05/2024 No. 9-P // Rossiyskaya Gazeta, No. 60, 03/20/2024).

Of course, the existence of heterogeneous law enforcement practice contradicts such constitutional guarantees as equality of persons before the law, justice, and democracy. In this regard, the adoption by the Constitutional Court of the Russian Federation of Resolution No. 9-P dated 03/05/2024 is an important step towards solving this problem, since it is aimed at eliminating the possibility of a heterogeneous interpretation of the specified norm by the law enforcer. The controversial judicial practice in cases of false declaration of goods is a traditional "stumbling block" of interaction between customs authorities and persons moving goods across the customs border of the EAEU. In order to avoid violations of customs legislation, customs authorities grant declarants the right to receive a preliminary decision on the classification of goods, carry out functions to inform and advise participants in foreign economic activity, in addition, Note 2 to Article 16.2 of the Administrative Code of the Russian Federation provides for the possibility of exemption from administrative liability in the case of voluntary notification by the declarant of the fact of non-declaration of goods. Thus, participants in foreign economic activity have every opportunity to comply with customs legislation, but the results of customs control after the release of goods indicate the opposite. In turn, the judicial precedent considered earlier gave an unambiguous indication to the customs authorities to interpret Part 2 of Article 16.2 of the Administrative Code of the Russian Federation as a material composition, which is provided for by the meaning of the administrative law.