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Messenger Electronic customs declaration: when it applies
Among entrepreneurs engaged in foreign economic activity (ЗЕД), recently rumors have circulated that now all MD will be only in electronic form and that submitting original export MDs to the tax office, as before, will no longer be necessary starting in October.
There is a supposition that over time all customs declarations will be in electronic form
Among entrepreneurs engaged in foreign economic activity (ЗЕД), recently rumors have circulated that now all MD will be only in electronic form and that submitting original export MDs to the tax office, as before, will no longer be necessary starting in October. Let’s find out whether this is true and how to nevertheless confirm border crossing using an electronic customs declaration. Time does not stand still, including in the declaration of goods. Thus, pursuant to art. 257 of the Customs Code of Ukraine (МКУ), declaration of goods may be carried out by making a statement in an established form (written, oral, by taking actions). Moreover, when applying the written form of declaration, both electronic documents and documents on paper may be used. Electronic declaration is carried out using an electronic customs declaration (hereinafter — ECD), certified by an electronic digital signature (EDS), and other electronic documents or their details in cases provided by law. Customs declarations — regardless of how they are issued: on paper or as an ECD — have the same legal force.
Let us also recall that from October 1 customs declarations (hereinafter — MD) are completed taking into account the provisions of the new Order No. 6512. All rules introduced by Order No. 651 regarding paper MDs also apply to ECDs. In other words, MDs have the right to exist both in paper form and in electronic form.
All exporters also know that when requesting a VAT refund from the budget, together with the VAT return it is necessary to submit the originals of customs declarations in accordance with para. 200.8 of the Tax Code of Ukraine (ПКУ). However, as further noted in the same paragraph of the code, in the case “… if the customs clearance of goods exported beyond the customs territory of Ukraine was carried out using an electronic customs declaration, such an electronic customs declaration is provided by the customs authority to the state tax authority in the manner approved by the Cabinet of Ministers of Ukraine, in electronic form subject to the condition regarding the registration of the electronic signature in accordance with the law”.
An exporter must also confirm the fact of border crossing by the exported goods. How can this be done in the case of electronic declaration of goods? Let’s turn to the Regulation on MD3. Thus, pursuant to para. 32 of this regulation, to confirm export of goods under an ECD (without prior processing of a periodic MD) information about the actual removal of goods beyond the customs territory of Ukraine must first be entered by an officer of the customs authority at the checkpoint across the state border of Ukraine into the EAIS4. Then the specialized customs authority (the customs office through which the enterprise carried out the declaration of goods) no later than five working days after entering the information into the EAIS about the border crossing “… transmits to the relevant state tax authority an electronic notification, certified by the electronic digital signature of the responsible official, indicating, in particular, the number of the customs declaration, the item number in the customs declaration, the quantity of goods exported beyond the customs territory of Ukraine, and the date of their actual removal”. In the case of processing in accordance with art. 260 of the CCU, in particular a periodic MD, the declarant or his authorized person must within the terms determined pursuant to the CCU submit to the customs authority an additional declaration that contains precise information about the goods declared under such periodic MD that would be submitted if these goods were declared by MDs, completed in the usual manner (para. 1 art. 261 chap. 40 of the CCU).
Therefore only after issuing an electronic additional MD to the electronic periodic MD is the automated attachment of information about the actual removal of goods beyond the customs territory of Ukraine for this periodic MD, entered into the EAIS by an officer of the customs authority at the checkpoint across the state border of Ukraine, carried out. And then everything is the same as when confirming the fact of border crossing when issuing a regular ECD. Information about the actual removal of goods beyond the customs territory of Ukraine no later than five working days after issuing the additional MD is sent by the specialized customs authority to the relevant tax authority by sending an electronic notification certified by the EDS of the responsible official, indicating, in particular, the MD number, the item number in the MD, the quantity of goods exported beyond the customs territory of Ukraine, and the date of their actual removal.
It creates the impression that when exporting via ECD the tax authorities should receive information about the actual removal of goods beyond the customs territory of Ukraine and not require the exporter to provide the original MD. But what is the reality? In reality, local tax authorities demand “paper” confirmation of the fact of removal of goods beyond the customs border of Ukraine even in the case of electronic declaration of goods. And this is because changes have not yet been made to the relevant software in the tax authorities. Thus tax inspectors do not have access to certain information. Perhaps this could be attributed to incompatibility of data exchange protocols between the customs and tax services. It is possible that the tax authority simply has not yet issued an internal order regarding cooperation with customs authorities. In any case, for now local authorities require original MDs with factual confirmation of the goods’ border crossing. And in Appendix 6 “Directory of reasons why tax reporting is not considered a tax declaration” to the current Methodical Recommendations on acceptance and computer processing of tax reporting in the tax authorities of Ukraine (Approved by the order of the DPSU dated 14.06.2012 No. 516) under code 108 the reason is listed as “Reporting completed and submitted not in full (submission of the declaration without the original customs declarations (copies of the declarant) on paper)”. Perhaps the DPSU bodies simply have not had time to bring their subordinate acts into compliance with the Tax Code.
What should the exporter do? It is worth certifying paper copies of the issued ECDs. What needs to be done for this? First, write to the customs authority (the customs authority subdivision) that handled the declaration with a free-form letter-application requesting certification of a copy of the issued ECDs (specify the ECD number, date) on paper. The paper copy of the ECD itself is a visual presentation on paper of the ECD issued by the customs authority, displayed in *.xps format (a visual form suitable for a person to perceive its content). Certification is carried out as follows: the customs official places at the top of the front side of the printed paper copy of the ECD the mark “Copy. According to the original”. The personal signature, initials and surname of such official, the date of certification of the copy and the imprint of the personal numbered seal of the customs officer are also affixed (para. 5.4 of Order No. 651).
In the author’s opinion, having such a certified copy of the ECD, it would also be worth confirming the fact of border crossing for such an electronic customs declaration. That is, you need to contact once again the customs authority that issued the relevant customs declaration with a free-form application. However, para. 30 of the Regulation on MD states that together with the application one must submit “… the original customs declaration on the single administrative document form (sheets marked “3/8″ of form MD-2 …” ), — and we have not the original but a paper copy of the electronic MD. But we hope that the enterprise will not be refused confirmation of the fact of border crossing of the exported goods. The application is registered by the customs authority in the manner established by law and is considered no more than five working days from the date of its registration. Then the EAIS database is checked for the presence of information about the admission of the goods declared in this ECD beyond the customs territory of Ukraine. And if such information is present, on the reverse side of the sheet marked “3/8” of the respective MD on the single administrative document form (in our case — the paper copy of the ECD) the customs official must make an entry “The goods declared in this customs declaration have been exported beyond the customs territory of Ukraine in full” or “The goods declared in this customs declaration have been exported beyond the customs territory of Ukraine in the amount of (the amount is specified)” and indicate the date of actual removal. Such an entry is certified by the signature and the personal numbered seal of the official who confirms the information about the actual removal of the exported goods.
The algorithm of actions outlined above are only reflections and proposals. So far there is no confirmation that this mechanism will work! Therefore, to avoid misunderstandings with the tax authorities and loss of the right to a VAT refund from the budget we advise to send appropriate inquiries for clarification of the situation to your customs office and the tax inspectorate. Of course, you can also go the judicial route to resolve this problem — the choice is yours! The exporter also needs to know about the actual removal of the goods under his electronic MD. It is on this date that the taxpayer (business entity) applies the 0% VAT rate and reflects the export operation in the VAT return. And this is currently not provided for by the regulatory Regulation on MD, more precisely, its para. 32. That is, it is unknown how an exporter who exported goods by means of an ECD should know about the actual removal of such goods beyond Ukraine. It can be concluded that amendments should be made to the Regulation on MD. We would add that the amendments should, in particular, provide for supplying the corresponding notification about the actual removal of goods beyond the customs territory of Ukraine for this ECD, certified by the EDS of the responsible official, to the declarant or his authorized person. And returning to paper declaration is nonsense. These unresolved points should somehow be resolved locally, perhaps by the method recommended by the author. Although the customs office has every reason to refuse the business entity in confirming the fact of border crossing of the goods exported via ECD, because at present this is not provided for by the Regulation on MD.
However, the tax and customs authorities should finally resolve this issue and automatically exchange the relevant information when declaring electronically at customs. However, the legislation does provide for this, but, as we can see, practical implementation of the legislative norms into life is not yet in place. We hope that by the end of the year this issue will be settled.