Taking a product to its destination is a necessary and useful task in commerce and requires a broad duty of control for those who engage in this type of activity. Import and export acts are subject to a series of formalities and requirements that depend on the good performance of several individuals who have different specific attributions.
Until the year 2022, according to information from the Public Prosecutor’s Office, criminal prosecution in the customs area is more than double the present one in tax matters. This means that the review of customs matters by the Tax Administration is recurrent and strict. Faced with this scenario, it is possible to perceive an evident legal risk of a criminal nature that often falls on the Importer or Receiver, so it is suggested to properly delimit the activities assigned to one of the subjects involved in these processes and thus avoid malicious acts and control the scope of action of each of them. In order to know in detail, the legal risks of this activity, the following is a brief description and practical recommendations to mitigate them:
- Customs Fraud:
The act or omission through which the payment of taxes applicable to the customs regime is evaded, with intention or premeditation, and which exceeds US$3,000.00, is criminally punishable with imprisonment of 7 to 10 years and is typified as Customs Fraud. As described above, these acts require the concurrence of several elements on the part of the perpetrator, such as:
- Intention or malice.
- Evasion of the payment of taxes.
- Exceeding the amount of US$3,000.00.
If these elements are not met, that which is subject to investigation before the Public Prosecutor’s Office must be dismissed, since there will be no criminal act susceptible to prosecution.
- Preventive acts:
In the event that criminal prosecutions are initiated against the Declarant or Importer for the alleged commission of this fact of customs nature, it is essential to submit to the competent authority the appropriate documentation and information through which it is objectively evidenced that the declarant or importer did not do anything wrong and that, in any case, he had an adequate control, within reason, of the arrival of his merchandise.
The documentation itself, contracts, quotations, offers, e-mails, merchandise tracking, vehicle information, arrival and unloading policies, as well as any other information, can be very useful to prove that there was an adequate control of the fact. It is therefore urged to adequately document the reality of the relationships that exist within the entire customs procedure of the goods.
As for the parties involved in the event, we can mention, among others, the Customs Authority, Auxiliary Agents, Consignor, Consignee, Declarant, Customs Agents, Customs Depositaries and Customs Carriers. The laws and regulations assign specific functions to each of these subjects, which they must perform at specific administrative moments. It is important that each of these subjects, whether public or private, are fully aware of their scope of action and act accordingly.
In relation to this scope, in addition to documenting responsibilities correctly and contractually, it is suggested that any non-compliance, oversight, error or procedural fault performed by any of these subjects be documented in some objective way, making each subject responsible for their own actions.
As described, all importers and exporters are exposed to different legal risks of a criminal nature. It is therefore proposed that, in the event of the occurrence of a risk of this nature, it is proposed to proceed to prove the good performance in the preliminary investigation phase at the Public Prosecutor’s Office. However, if the risk has not occurred, it is ideal that, in order to carry out this type of activities, the legal risks are measured, and control or mitigation mechanisms are stipulated. In this measurement, the nature of the industry, the frequency of activities, the organization chart of the entity, as well as the quantities and amounts that are exported or imported should be known. In addition, the product must be known in detail, as well as the identification of all the parties involved in the process and the definition of their functions.
In any case, it will always be necessary to maintain control or due diligence of this type of activities, even if they have been delegated, as they may eventually have an impact on the business.