WCO News – October 2020

The WCO has published the 93rdedition of WCO News, the Organization’s flagship magazine aimed at the global Customs community, which provides a selection of informative articles that touch the international Customs and trade landscape.

This issue looks more specifically at Customs valuation, a technical but fundamental subject. Since its inception, the WCO has always been closely associated with the different multilateral systems used to value imported goods. As the Technical Committee on Customs Valuation established by the WTO Agreement on Customs Valuation has just celebrated its 50th Session, we thought it appropriate to retrace the history of the rules used to determine the value of imports, the challenges raised by their implementation and existing opportunities for Customs to enrich their knowledge and improve their practices in this area.

The “Panorama” section covers various topics such as the development of electronic tariff platforms in Africa, the improvement of the food clearance process in India, the construction of an advanced digital platform for trade and logistics in the United Arab Emirates, enhanced collaboration between Australia and Korea through officer placement, and, finally, the perspective of Customs experts on issues deemed important in their own country or area of work.

Following on from the previous edition of the magazine, we have compiled articles related to the COVID-19 pandemic in the “Focus” section. The WCO Secretariat presents, in particular, the new procedures and new tools adopted to ensure continuity of activities by the Organization’s working bodies. As for capacity building, it is discussed in an article describing the remote delivery of Mercator Programme Stocktaking and Forward Planning missions by the WCO team overseeing the HMRC-WCO-UNCTAD Programme.

The “Flash info” section includes a long article on the new approaches to measuring corruption and integrity which have been adopted by the WCO Secretariat team in charge of the Anti-Corruption and Integrity Promotion (A-CIP) Programme, and what lessons can be learned from their experience so far.

Finally, this issue’s “Point of view” article highlights the benefits of using systematic non-intrusive screening equipment and automatic detection to screen baggage upon arrival at airports.

It has been our great pleasure to produce another edition of WCO News and we trust that you will enjoy reading this issue, whether it be the paper version or the new mobile-friendly digital one.

Source: WCO, 28 October 2020

Ghana – Integrated Customs Management Systems to be mandatory in June 2020

The Ghana Revenue Authority (GRA) has stated that effective June 1, 2020, all transactions related to the import and export of goods at the various ports in the country shall be processed through the Integrated Customs Management Systems (ICUMS).

The move, according to the GRA, was aimed at coordinating all import and export activities at the ports on a single platform to reduce cost in clearing and exporting of goods.

ICUMS  is a new port clearing system that processes documents and payments through one window and the system is a departure from the previous system where ‘valuation and classification’ and ‘risk management and payment’ were handled by different entities.

The deployment of ICUMS, which started yesterday at the Tema Port and all other entry points, is envisaged to replace the Pre-Arrival Assessment Report (PAARS) which was being handled West Blue and the GCMS which was jointly operated by the Customs Division of GRA and GCNet.

The GRA in a press statement issued in Accra on Monday, signed by the Acting Commissioner-General, Ammishaddai Owusu-Amoah and copied to the Ghanaian Times, however, said between April 28, 2020 and May 31, 2020, transactions in respect of import and export manifest can be processed through either the ICUMS or the Ghana Customs Management System (GCMS) for the Tema Port as well as all other entry points.

 “All existing transactions commencing prior to the 31st of May 2020 for which processing have not been completed in the GCMS (before or after payment of duty) shall be processed through the ICUMS,” the statement said.

The Ministry of Trade and Industry in March 2018 signed a contract with the Ghana Link Network Services Limited in collaboration with Customs UNI-PASS International Agency (CUPIA) of Korea Customs Services to introduce the UNI-PASS Systems in Ghana for a period of ten years at a cost of $40 million.

However, the Ghana Institute of Freight Forwarders (GIFF) has kicked against the government contract with Ghana Link Network Services and the implementation of the UNI-PASS system in Ghana.

According to the Institute, the GCNet and West Blue Consulting systems were superior and were working perfectly and thus there was no need for a new system.

GIFF in a situation report on the deployment of UNIPASS/ICUMS at Takoradi copied to the Minister of Trade and Industry, Alan Kyeremanteng, cited by this paper, cautioned that the nationwide implementation of the UNI-PASS system, now Integrated Customs Management System will adversely affect their operations.

“The myriad of problems facing declarants mostly due to lack of proper mapping of the process flow, inadequate training of declarants and unresolved systemic issues must be addressed,” the report said. 

But government in a statement it issued a couple of weeks ago debunked reports that UNI-PASS, has no track record and the required competence to execute the work at hand and  that the UNI-PASS technology had not been deployed or tested anywhere in the world was inaccurate.

“The UNI-PASS technology has been deployed successfully in Tanzania since 2015 under the name Tancis, which World Customs Organisation (WCO) has acclaimed as one of the best innovative trade facilitation systems. Cameroun, like Ghana, has deployed the same technology after successfully developing their system early this year,” the statement said.

“The decision to discontinue with the services of GCNet and other service providers was informed by the need to replace the multiplicity of vendors with a single service provider deploying an end-to-end system,” the statement said.

Source: article by Kingsley Asare, Ghanaian Times, 29 April 2020

BEPS Impact on Trade and Customs

Transcript of video
Todd Smith, principal in KPMG LLP’s Trade & Customs practice: We had over 350 people attend the webinar on Base Erosion and Profit Sharing (BEPS) from a Customs Perspective. I think the reason is because there hasn’t been a lot of discussion on how BEPS will impact customs.

I read all of the action items that the OECD published in October to identify where there would be crossover or an overlap on customs as it relates to BEPS. There clearly is going to be quite an impact.

For one thing, there is a lot of transparency that is being created overall by the BEPS initiatives, and customs auditors around the world are increasingly cooperating with the tax administrations around the world, so there will be a treasure trove of information for the customs auditors found within the Master File, the Local File and the CbC report, and just as tax administrators will use that information because of the information sharing, customs auditors will also use that information to identify targets for audits.

It will tell them, for example, where there is a related party transaction where they may not have had that information previously.

One of the big areas that we feel the customs function will be impacted by BEPS is where you have a situation where a company may need to convert a commissionaire to a buy-sell. When this happens, the importer of record could change, and more importantly the value that’s declared to customs under a commissionaire structure oftentimes is the third-party customer price. And when that entity converts to a buy-sell entity, the new buy-sell entity becomes the importer of record. It needs to achieve a margin, and the only way really to do that is to import that same product at a lower price.

And so the challenge is to convince the customs administration that the new price with the limited-risk distributor, for example, which is lower in its related party price, is still considered arm’s length, even though it’s less than the previous import value at the 3rd party customer price. Source: KPMG

Recommended reading

New WCO Instrument on Transfer Pricing and Customs Valuation

New WCO InstrumentAn important new instrument was finalised at the 42nd Session of the Technical Committee on Customs Valuation which took place in Brussels from 18 to 22 April 2016 under the Chairmanship of Ms. Yuliya Gulis of the United States.

The instrument contains a case study illustrating a scenario where Customs took into account transfer pricing information in the course of verifying the Customs value.

The WTO Valuation Agreement sets out the methodology for establishing the Customs value, used as the basis for calculating Customs duties. The Agreement foresees that Customs may examine transactions between related parties where they have doubts that the price has been influenced by the relationship.

The Organisation for Economic Cooperation and Development (OECD) has developed Guidelines for establishing the transfer price, that is the price for goods and services sold between controlled or related legal entities, in order to determine business profit taxes where businesses are related.

Over recent years, the similar objectives but different methodologies of transfer pricing and Customs valuation have been noted, and it has been recognised that business documentation developed for transfer pricing purposes may contain useful information for Customs. An earlier instrument of the Technical Committee, Commentary 23.1, confirmed this principle.

The new case study provides an example of Customs making use of transfer pricing information based on the transactional net margin method. On the basis of this information, Customs accepted that the sale price in question had not been influenced by the relationship.

The OECD has provided valuable input to the Technical Committee discussions in the development of the new instrument which provides helpful guidance to both Customs administrations and the business community.

Both the WCO and the OECD advocate closer cooperation between Customs and tax administrations in order to strengthen governments’ ability to identify the correct tax and duties legally due and enhance trade facilitation for the compliant business sector.

WCO Secretary General, Mr. Kunio Mikuriya, has congratulated the Technical Committee on the work achieved : “This new instrument is an important step for the WCO and demonstrates its relevance by providing guidance on the management of Customs valuation in an increasingly complex trade landscape, whilst maintaining consistency and strengthening cooperation with Tax authorities.”

The case study (Case Study 14.1) will be made available in the WCO Valuation Compendium, subject to approval by the WCO Council in July 2016.

Further information on this topic can be found in the WCO Guide to Customs Valuation and Transfer Pricing, available via this link

WCO makes the “Technical Guidelines on Advance Rulings for Classification, Origin and Valuation” publicly available

WCO - Technical Guidelines on Advance Rulings for Classification, Origin and ValuationThe World Customs Organization (WCO) has made the “Technical Guidelines on Advance Rulings for Classification, Origin and Valuation” publicly available. These guidelines were developed in order to support the implementation of Article 3 (Advance rulings) of the Bali Ministerial Decision on the Agreement on Trade Facilitation (TFA) and shared only among the WCO Members.

The purpose of publishing this document is to further enhance the transparency of the WCO’s work in this area as well as to provide additional information to any interested party. The Technical Guidelines are available here. Source: WCO

US Customs to assist exporters in resolving disputes with foreign customs

CBP logoU.S. Customs and Border Protection (CBP) published a Federal Register Notice inviting U.S. exporters to request CBP’s assistance in resolving disputes with foreign customs agencies over the tariff classification or customs valuation of U.S. exports. CBP explains that it is willing to assist U.S. exporters with these disputes under the auspices of the World Customs Organization (WCO). CBP is very active at the WCO and regularly participates in meetings concerning the application of the Harmonized Commodity Description and Coding System (HS System) and the World Trade Organization’s (WTO) Customs Valuation Agreement (CVA). According to CBP, this process was helpful in providing a successful outcome for clients who disputed a foreign customs agency’s classification of imported goods.

Tariff Classification
CBP represents the United States at meetings under the auspices of the International Convention on the Harmonized Commodity Description and Coding System (“HS Convention”). The HS Convention is the international agreement that provides that WCO Members will implement the HS System and comply with decisions of the various committees organized under the convention. CBP attends semiannual meetings of the WCO’s Harmonized System Committee (HSC), where contracting parties to the HS Convention examine policy matters, make decisions on classification questions, settle disputes, and prepare amendments to the HS System and its Explanatory Notes.

Article 10 of the HS Convention governs disputes between contracting parties concerning the interpretation or application of the HS Convention. The article provides that parties with potential disputes should first try to settle the dispute through bilateral negotiations. If such negotiation cannot resolve the dispute, the parties may refer the dispute to the HSC for its consideration and recommendations. The HSC, in turn, refers irreconcilable disputes to the WCO Council for its recommendations.

Customs Valuation
CBP represents the United States at the WCO with respect to issues arising under the CVA. Pursuant to Annex II to the CVA, the WCO’s Technical Committee on Customs Valuation (TCCV) is authorized to examine specific problems arising from the customs valuation systems of WTO Members. The TCCV is responsible for examining the administration of the CVA, providing WTO Members with advisory opinions regarding particular customs valuation issues, and issuing commentaries or explanatory notes regarding the CVA. Like the HSC, the TCCV may get involved in disputes amongst foreign customs agencies. CBP stands willing to help U.S. exporters with these disputes. This process may provide U.S. exporters with a faster procedure to resolve disputes than a typical WTO dispute.

CBP’s Role at the WCO May Resolve Export Issues for U.S. Exporters
CBP states in the notice that its communication with other customs administrations through the meetings of the HSC and TCCV at the WCO can “often serve to eliminate or resolve export issues for U.S. traders.” As an example, in 2014, a U.S. exporter notified CBP of a foreign customs administration’s misclassification of its textile exports. The U.S. exporter requested that pursuant to Article 10 of the HS Convention, CBP (1) contact the foreign customs administration to resolve the tariff classification dispute; and (2) refer the matter to the HSC at the WCO, if it could not be resolved bilaterally. After confirming it agreed with the U.S. exporter’s position, CBP engaged the foreign customs administration directly. Within seven months of the exporter’s request, CBP secured a favorable decision by the foreign customs administration to classify the merchandise in a manner consistent with the U.S. position. Consequently, the U.S. exporter obtained correct tariff treatment of its imported merchandise in the foreign country as a result of CBP’s engagement.

Source: http://www.internationaltradecomplianceupdate.com/

Canada Border Services Agency – raises customs and dutiability issues

EYIn one of the most important customs cases in years (Skechers USA Canada Inc. v The President of the Canada Border Services Agency (2013), AP-2012-073 (CITT), referred to in this article as Skechers Canada), the Canadian International Trade Tribunal (CITT) confirmed an aggressive interpretation by the Canada Border Services Agency (CBSA).

The case concerned additions to the transaction value for intercompany payments made outside of the invoice amount or transfer price that relate to design and development costs allocated to the importer.

As part of a recent enforcement trend of the CBSA toward assessing customs duty on intercompany management or other fees not included in the transfer price, the CBSA determined that the total research and development (R&D) intercompany fees paid by the Canadian company were part of the value for duty allocated over the goods actually imported.

In a potentially far-reaching decision, the CITT endorsed this decision for cases where the importer cannot demonstrate that the payments are unrelated to the goods.

The Skechers Canada case

The taxpayer in Canada purchased footwear from its US affiliate and established a transfer price for goods based on the US affiliate’s factory cost from the offshore manufacturer plus transportation, warehousing and an amount for profit.

This price included the cost of “assists” relating to the molds and samples that the US affiliates provided to the manufacturers for the successful models subsequently imported. It did not include, however, the value of the design work performed in respect of the development of unsuccessful prototypes or models (approximately 45,000 of the 50,000 models under development never made it to the final stage), nor the costs for the general R&D expenses of the US affiliate (salaries and overhead). Therefore, the taxpayer also made payments for these costs to the US affiliate under a cost-sharing agreement (CSA).

The fees paid by the taxpayer under this agreement were a function of the volume of import purchases. They were calculated based on operating profit of the taxpayer pursuant to the terms of the CSA and thus varied with volumes of imports and sales.

As noted, of the approximately 50,000 models under development, only 5,000 made it to the final cut, and of this only approximately 1,700 were imported to Canada. Accordingly, most of the payments for research and design and development under the CSA were not included in the transfer price.

The decision

Both parties to the dispute agreed that the Tribunal should use the “transaction value” customs valuation methodology (the adjusted transfer price). The issue concerned whether the payments for R&D under the CSA were “in respect of” the goods and therefore part of the “price paid or payable” pursuant to Subsections 45(1) and 48(4) of the act.

A basic provision of customs valuation is that the transaction value must include all payments made “in respect of” the goods. The taxpayer contended that the payments were for intangibles and not in respect of the goods as they were for developing the brand.

In a precedent-setting decision, the Tribunal held that all payments under the CSA relating to research, development and design were dutiable because they were, in the Tribunal’s words, “clearly in respect of the goods” given that the evidence disclosed that “the R&D payments most directly concern the footwear products themselves.”

There was one continuous process by which the research, design and development process flowed through the season to develop the footwear. Therefore, the activities and associated costs covered by the R&D payments can all be located somewhere along the continuum of that lengthy and interrelated process and the research and design efforts and associated fees were “directly aimed” at developing the models available for purchase each season by the taxpayer.

Thus, the Tribunal found that the costs were directly related to developing and designing the particular footwear that was imported. The payments and the imported goods were directly linked as the fees were calculated based on the taxpayer’s Canadian operating profit and, hence, if imports increased, so would the payments.

What does the Skechers Canada decision mean?

As a result of the decision, in Canada, at least for now, payments made by the Canadian purchaser to the overseas vendor for “research, design and development” costs, whether they result in actual production of the purchased models or are allocable to other non-imported models or aborted designs, are part of the value of the goods for customs purposes where the Canadian importer pays amounts that vary with sales and imports, to an affiliate under a CSA.

Impact on supply chain planning

The case is a wake-up call for many multinationals to consider customs planning rather than just income tax or logistics planning. Further, it highlights the need to be aware of, or to seek advice from advisors experienced with, the latest case law or CBSA policy. Customs compliance and leading practices for planning need to be considered along with any other savings to achieve the best overall efficiency for the supply chain.

Lessons learned?

First and foremost, a supply chain structure must be considered very carefully when importing goods into Canada, particularly through a supply chain involving affiliated parties. Often a direct sale from the manufacturer to the importer may have customs planning advantages.

Where there are purchases from a related party who sources the goods abroad, it is important to ensure that the transfer price is acceptable for customs valuation purposes and to confirm whether any adjustments are required for other payments, such as R&D costs and royalties. In a direct sale, “assists” must also be considered.

The onus is on the importer to prove that any payments made are not in respect of the goods under the act. This point is often overlooked. In this case, it was crucial as the Tribunal made its finding on the basis that the taxpayer did not discharge this onus. It is important to keep the importer’s onus of proof in mind when undertaking any customs duty planning and also when deciding to make any appeal against a determination.

This article was first published in EY´s Indirect Tax Briefing: July 2014

China Customs – New Valuation Regulations

China Customs EmblemImportant information regarding customs valuation in respect of imports and exports in the People’s Republic of China.

The General Administration of Customs of the People’s Republic of China (“GAC”) issued two new regulations on customs valuation, both effective from 1 February 2014. GAC Order No. 213 (“Order 213”), entitled Measures of Customs of the People’s Republic of China for the Determination of Dutiable Value of Imports and Exports, will replace the existing regulation with the same title issued under GAC Order No. 148 on 28 March 2006 (“Order 148”). In addition, GAC Order No. 211 (“Order 211”), entitled Measures of Customs of the People’s Republic of China for the Determination of Dutiable Value of Domestic Sales of Bonded Goods, is an entirely new regulation specifically providing for the valuation of bonded goods sold within the territory of China.

Briefly, the abovementioned Orders cover the following issues –

  • Customs may consider the circumstances of a sale in determining the acceptability of transaction value between related parties.
  • Calculation of international freight for imported goods.
  • Commissions in the valuation of exported goods.
  • Bonded materials or finished goods (including defective and substandard goods) sold by a contract manufacturer located within the territory of China.
  • Bonded waste and scrap materials, by-products and residue after accidents sold by a contract manufacturer located within the territory of China.
  • Bonded goods transferred under deep processing and sold by the transferee.
  • Bonded materials or finished goods sold by a manufacturer located within a customs bonded area.
  • Bonded scrap, defective or substandard products and by-products sold by a manufacturer located within a customs bonded area.
  • Bonded goods imported into a customs bonded area for logistics, inspection and exhibition purposes and sold within the territory of China.
  • Bonded goods for Research and Development (“R&D”) in a customs bonded area and sold within the territory of China.

 For more details, read the full analysis at Baker & MacKenzie’s website.

WCO expert provides Customs Valuation training assistance

WCO expert Ian Cremer (centre, back row) with SARS staff involved in valuation training project.

WCO expert Ian Cremer (centre, back row) with SARS staff involved in valuation training project.

The SARS Academy is reviewing and packaging its training material so as to align its curriculum to international standards. It has embarked on a process of benchmarking its training material, kick-starting the process in the School of Customs and Excise.

WCO facilitator Ian Cremer recently visited the Academy at Waterkloof House in Pretoria to provide assistance with the strengthening of their valuation training programme. A group of trainers, curriculum developers and valuation specialists from business worked with the WCO valuation expert in the development of the new training material.

Training modules will be developed at the following levels: Basic, Intermediate and Advanced, and will be aligned to the WCO’s own valuation training modules.

Further work will now be conducted on developing a delivery strategy. This will ensure that key staff are trained to the necessary level and are able to conduct their duties in a professional level, meeting the dual requirements of fair and efficient revenue collection and the facilitation of compliant trade. Source: SARS

Finance Ministry approves transition of destination inspection service from scanning providers to Nigeria Customs Service

NigerianCustoms-BadgeThis is a landmark and very brave decision by the Nigerian Government. All countries operating Build Operate Transfer (BOT) X-ray cargo scanning services should watch this development with interest.

Following the expiration of the Destination Inspection Contract Agreements between the Federal Government of Nigeria and Scanning Service Providers (SSPs), the President, Commander in Chief of the Armed Forces has directed the transition of Destination Inspection Service from contracted SSPs to the Nigeria Customs Service.

Accordingly, effective from 1st December 2013, Nigeria Customs Service has taken over full processing of all import transactions to Nigeria in accordance with the amended Import Guidelines of the Destination Inspection Scheme. Pursuant to this, all Scanning Service Providers (Cotecna, SGS and Global Scan) shall cease to approve new Form M, issue Risk Assessment Report (RAR) or perform Scanning operations for goods imported into Nigeria.

In international trade several destination countries require Pre-shipment inspection. Pre-shipment inspection, also called preshipment inspection or PSI, is a part of supply chain management and an important and reliable quality control method for checking goods’ quality while clients buy from the suppliers.

After ordering a number of articles, the buyer lets a third party control the ordered goods before they are dispatched to him. Normally an independent inspection company is assigned with the task of the PSI, as it is in the interest of the buyer that somebody not connected with the deal in any way verifies the amount and quality. This way the buyer makes sure, he gets the goods he paid for. Wikipedia

The SSPs shall handover all valid Form Ms and existing Valuation Database to the Nigeria Customs Service. However, the contract for provision of ICT infrastructural back up for the scheme currently being executed by Webb Fontaine is extended for a period of 18 months to ensure a smooth takeover by NCS.

As we enter this era, the Federal Ministry of Finance urges stakeholders and all Nigerians to give the Comptroller General of Customs and his team all the support necessary to manage a smooth and successful takeover. While no effort was spared in the build up to this process, we should all bear it in mind that transitions of this magnitude may throw up some implementation challenges. It will require the understanding of all Stakeholders to manage whatever initial challenges that may arise before the process fully stabilizes.

As part of the take-over plans, Help Desks and Dedicated Hotlines have been provided to enable Stakeholders and the general public channel complaints, observations and suggestions on the process to the Nigeria Customs Service. Help Desks are provided at Customs Headquarters, Abuja and other Commands across the Country. Such feedback can also be channeled directly through the following dedicated numbers: 09 4621597, 09 4621598 and 09 4621599.

The Ministry will like to convey the appreciation of Mr. President and all Nigerians to the Scanning Service Providers for services rendered to the Nation since the beginning of the Destination Inspection scheme in 2006.

Source: Businessnews.com.ng

A new instrument of the Technical Committee on Customs Valuation

wco - valuationA new instrument of the Technical Committee on Customs Valuation has recently been published. Advisory Opinion 4.15 provides guidance on a case where royalties have been paid to a third party licensor (in other words, the licensor is not the seller of the goods) and determines whether or not it is appropriate to include the royalty fee in the Customs value of the imported goods. Available from WCO Online Bookshop.