<<
>>

§ 1. Obligatory elements of legal structure of the customs duties

Obligatory elements of legal structure of the tax are those elements without which legislative fastening the tax is not considered established. We will be reserved at once, that because now the customs duties are among not tax payments de jure the list of obligatory elements of the customs duties are not defined, however de facto it not so.

The technics of legislative fastening of the specified elements allows to draw a conclusion that the customs duties can be carried to taxes [202]. We will illustrate it.

Owing to positions of item 17 NK the tax is considered the Russian Federation established only in that case when tax bearers and taxation elements are defined, namely:

- Object of the taxation;

- Tax base;

- The tax period;

- The tax rate;

- Order of calculation of the tax;

- Order and terms of payment of the tax.

Let's analyse each of the listed elements with reference to the customs duties.

Payers of the customs duties. According to item 79 TK the HARDWARE

Payers of the customs duties, taxes are the customs applicant or other persons on whom according to TK the HARDWARE, international treaties of member states of the Customs union and (or) the legislation of member states of the Customs union assign a duty on payment of the customs duties, taxes. In turn, on the basis of item 19 NK the Russian Federations tax bearers admit the organisations and physical persons to whom according to NK the Russian Federation is assigned a duty to pay taxes. Thus, the concept containing in TK the HARDWARE, does not contradict legally to the concept of the tax bearer fixed in tax laws.

The greatest interest for the present research is represented by such subject of customs and customs-tariff legal relations as the customs applicant as in most cases he will admit the payer of the customs duties.

Subparagraph 6 of item 1 of item 4 TK the HARDWARE defines the customs applicant as the person who declares the goods or from which name the goods are declared. We will notice, that earlier in TK the Russian Federation similar definition contained.

Now on the basis of item 186 TK the HARDWARE customs applicants can be:

1) the person of member state of the Customs union:

Concluded the external economic bargain or from a name (under the commission) which this transaction is concluded;

Having the right of possession, usings and (or) orders the goods - in the absence of the external economic transaction;

2) foreign persons:

The physical person moving the goods for a private use;

The person using customs privileges according to chapter 45 TK the HARDWARE;

The organisation having representation, created in territory of member state of the Customs union when due hereunder, - at the statement of customs procedures of time import, re-export, and also a customs procedure of release for internal consumption only concerning the goods imported for own needs of such representations;

The person, having the right to dispose of the goods not within the limits of the transaction, as one of which parties the person of member state of the Customs union acts;

3) for the statement of a customs procedure of customs transit - the persons specified in subitem 1 and 2 items 186 TK the HARDWARE, and also:

Carrier, including customs carrier;

The forwarding agent if it is the person of member state of the Customs union.

According to item 188 TK the HARDWARE at customs declaring of the goods and fulfilment of other customs operations necessary for a premise of the goods under a customs procedure, the customs applicant has the right:

1) to examine, measure and carry out cargo operations with the goods which are under the customs control;

2) to take samples and samples of the goods which are under the customs control, with the permission of customs body at observance of the conditions provided by item 155 TK the HARDWARE;

3) to be present at carrying out of customs inspection and customs inspection of the goods by officials of customs bodies and at a capture these persons of tests and samples of the goods;

4) to get acquainted with results of researches of tests available in customs bodies and samples of the goods declared by it;

5) to represent according to the present Code documents and data in the form of electronic documents;

6) to appeal against decisions of customs bodies, actions (inactivity) of customs bodies or their officials;

7) to involve experts for specification of data on the goods declared by it;

8) to use other powers and the rights provided TK the HARDWARE.

Besides it the customs applicant performs the duties fixed in item 189 TK the HARDWARE. In particular, it is obliged:

1) to make customs declaring of the goods;

2) to present to customs body documents on which basis the customs declaration if other is not established by the customs legislation of the Customs union is filled;

3) to show the declared goods in the cases established TK the HARDWARE, or on request of customs body;

4) to pay customs payments and (or) to provide their payment according to the present Code;

5) to observe requirements and conditions of use of the goods in a corresponding customs procedure;

6) to fulfil other requirements provided TK the HARDWARE.

Object of taxation by the customs duties according to item 1 of item 75 TK the HARDWARE are the goods moved through customs border. Here it is necessary to notice, that in the customs legislation, no less than in tax, the error has been admitted at definition of object of the taxation. From the point of view Of this year Pepeljaeva, «the object of the taxation are those juridical facts (actions, events) which cause a duty of the subject to pay the tax». The similar point of view adhere to O.O.Zhuravlyov [203 [204], E.M.Ashmarina [205], A.B.Bylja [206], and also a number of other scientists. The moved goods in this case will be a subject, but in any way object of taxation by the customs duties. In this case it is necessary to understand the fact of moving of the goods as object through customs border of the Customs union as duty occurrence is connected with the given fact on customs duties payment.

It is possible to note and other feature of the customs duties. Unlike the VAT which are the universal tax, the customs duties the goods are assessed exclusively. It is caused by essence of the customs duties - real-life things in a material world and the subjects which are coming under to moving through customs border are exposed to the taxation only. Services, works, have no results of intellectual activity of the substantiated form. The specified circumstance, however, does not testify to not tax nature of considered payment. On the contrary, it in bolshej speaks to a measure about similarity of the customs duties and other indirect tax - excises. The following, in particular, testifies to it:

1) excises and the customs duties assess exclusively the goods;

2) both specified taxes join in the price of the goods;

3) they also join in tax base at definition of the sum of the external economic VAT coming under to payment, i.e. in tax base under the VAT indirect taxes (unlike direct taxes and not tax payments) are considered only;

4) the customs duties and excises are the limited indirect taxes. Excises assess both internal, and the external economic realisation of the limited group of the goods. The customs duties assess practically all kinds of the goods, except for on what the customs legislation gives privileges. Realisation of the goods in the country - only moving of the goods through customs border is not assessed. Hence, excises are limited by a taxation subject, the customs duties - application sphere;

5) historically excises and the customs duties have arisen before the VAT;

6) the basic purpose of the customs duties and excises is similar also. Both ukaznyh taxes serve as restriction means - in one case, the goods harmful in public consumption, in other - import of the foreign goods.

Proceeding from it, by analogy to the VAT which name also «the universal excise», it is possible to name the customs duties «the external economic excise».

Besides, depending on customs duties kind, we can allocate as well two kinds of its object:

1) for the export customs duties as object export of the goods from customs border of the Customs union will act;

2) for import - import of the goods on the Customs union customs territory.

It is necessary to notice, that from the point of view of civil law the goods will admit property [207 [208].

Following element of legal structure of the customs duties is its tax base which cost, physical or other characteristic of object of the taxation, as is known, is.

Depending on a kind of the moved goods and rates applied to them tax base of the customs duties and (or) their physical characteristic cost of the goods can admit natural expression (quantity, weight taking into account its primary packing which is inseparable from the goods before its consumption and in which the goods are represented for retail, volume or other characteristic) (item 2 of item 75 TK the HARDWARE).

As marks G.G.Jachmenev, «use of quantitative or physical characteristics does not create vital issues neither in the theory of the customs right, nor in the foreign trade activity». For definition of physical characteristics use such methods as measurement, a weather-cloth, the arithmetic method etc. is business when as tax base goods cost acts More difficult. Cost - an estimated category [209]. In market economies cost is defined on the basis of a supply and demand. In this connection in various regions at various times the price for the same goods it will be essential to differ. Besides, cost will always depend on a method of its estimation. So, for example, it is possible to include transport expenses, expenses on insurance, on services of a various sort of representatives and other kinds of expenses in goods cost, and it is possible and not to include. "Game" on goods cost is the main way of leaving from the customs duties taxation. As a result of such actions the state budget annually not doschityvaetsja billions roubles. In this connection special value gets a question on methods of definition of the price of the imported goods.

Now rules of definition of customs cost of the goods are fixed in the Agreement between the Government of the Russian Federation, the Government of Byelorussia and the Government of Republic Kazakhstan from 25.01.2008"About definition of customs cost of the goods moved through customs border of the Customs union» [210] (further - the Agreement from 25.01.2008). The given agreement fixes six methods on which basis there is a definition of customs cost. It is necessary to underline especially, that in the Customs union any special methods of definition of customs cost are not applied - for the first time they have been formulated within the limits of GATT and later are incorporated in the customs legislation of the HARDWARE. Moreover, earlier in the customs legislation of the Russian Federation the above described methods of definition of customs cost also contained. That is in this question the mechanism of legal regulation of the customs duties has not undergone essential changes.

So, now according to the Agreement following methods from 25.01.2008 are applied:

1) a method at cost of the transaction with the imported goods (a method 1);

2) a method at cost of the transaction with the identical goods (a method 2);

3) a method at cost of the transaction with the homogeneous goods (a method 3);

4) a subtraction method (a method 4);

5) an addition method (a method 5);

6) a reserve method (a method 6).

Owing to limitation of volumes of the dissertation we, unfortunately, are deprived possibility in detail to disassemble all six methods of definition of customs cost. At the same time it is obviously necessary to us to consider two methods: a method at cost of the transaction with the identical goods (a method 1) and a reserve method (a method 6). The matter is that the specified methods are put more often into practice, and, besides, their consideration in a separation from other methods allows to illustrate how much strongly rules of definition of customs cost of the goods vary at movement from the first method to the last, that, in turn, leads to differences in cost of the goods and, as consequence, to the different sums of receipts of money resources of the budget.

The first method is represented to the most exact in definition of customs cost of the moved goods. It is connected by that at its application as follows from the name of the given method, for a basis cost of the transaction with the imported goods undertakes. Cost of the transaction with the imported goods according to item 1 of item 4 of the Agreement is understood from 25.01.2008 as the price actually paid or coming under to payment for these goods at their sale for export on the customs territory of the Customs union and added according to positions of item 5 of data

Agreements. Thus the first method is applied only in case of observance of four conditions:

1) there are no restrictions concerning the rights of the buyer to using and the order the goods, except for restrictions, which:

- Are established by the joint decision of bodies of the Customs union;

- Limit geographical region in which the goods can be resold;

- Essentially do not influence cost of the goods. As an example of such restrictions it is possible to result widespread practice of "start of sales» when manufacturers define uniform for all world, separate region or the country a date started of sale of the goods. Sellers are limited specified date, that does not influence goods cost.

Thus, from the aforesaid it is possible to draw a conclusion, that the first method will be applied only to the external economic contracts of purchase. To contracts not providing property right transition (rent, leasing) the given method will not be applied. It will not be applied and to gift contracts as they are gratuitous, i.e. there is no payment;

2) sale of the goods or their price do not depend on any conditions or the obligations which influence on the price of the goods cannot be quantitatively defined. Among conditions which cannot be quantitatively defined, in the Note to Agreement Article 1 on application of article VII GATT [211] are called cases, when according to contracts:

- The seller establishes the price for the imported goods provided that the buyer will get also other goods in certain quantities;

- The price of the imported goods depends on the price or the prices on which the buyer of the imported goods sells other goods to the seller of the imported goods;

- On it is established on the basis of the form of the payment which has been not connected with the imported goods, for example, when the imported goods are half-finished products which are given by the seller on a condition, that the seller will receive certain quantity of the processed goods.

The specified conditions, concern to «to sale or the price» if they concern manufacture or sale of the industrial goods it does not influence possibility of application of the first method.

3) no part of the income or a gain from the subsequent sale, the order a different way or uses of the goods by the buyer is due expressly or by implication to the seller, except cases when according to item 5 of the Agreement additional charges from 25.01.2008 can be made. So, for example, the contract of purchase can be the condition according to which buyer is provided will to list to the seller certain percent of the receipt of the goods depending on what or conditions (more often the volume of the sold goods concerns such conditions). It stirs to definition of customs cost of the goods as it turns out, that the part before the money resources paid by the importer comes back to the seller, i.e. cost of the given goods actually appears more low;

4) the buyer and the seller are not the interconnected persons, or the buyer and the seller are the interconnected persons in such a manner that cost of the transaction with the imported goods is comprehensible to the customs purposes. Hence, the fact of interdependence of the buyer and the seller does not involve automatic bar of claim by lapse of time of application of the first method if it does not influence essentially the goods price.

The analysis the Agreement on application of article VII G eneralnogo agreements under tariffs and trade of 1994 allows to draw following conclusions concerning "payment" on the first method:

1) payment should be full, i.e. for definition of cost of the goods not can be the advance payment sum is taken;

2) payment should be made or directly buyer to the seller or in favour of the seller. Whether thus does not matter payment by the buyer or the third party under its commission has been made;

3) payment should be not necessarily made at the moment of declaring of the goods - it can be carried out and in the future;

4) payment should be not necessarily made in the form of remittance. It, in particular, is actual for barter deals, and also cases when, for example, there is an offset of incorporeal rights and in other cases when it is not carried out actual transfer of money resources;

5) payment can be carried out also by means of letters of credit or negotiable documents;

6) payment can be carried out expressly or by implication. As an example of indirect payment in the Note to Agreement Article 1 on application of article VII GATT the covering by the buyer in full or in part debts of the seller is resulted;

7) in a case if actions of the buyer are carried out on own account (except for additional payments not considered in the goods price but which join in customs cost) cost expression of such actions is not added to the goods price;

8) do not join in the price of the goods and transfer of dividends and others, not connected with the imported goods, payments;

9) also do not join in customs cost:

- Payments for building, erection, assemblage, service or rendering of the technical assistance, made after import concerning such imported goods, as plants, cars or the equipment;

- Transport expenses after import;

- Duties and taxes of the country of import.

Besides it to the price actually paid for the goods, additional charges which concern should be added:

- The sums of compensations to intermediaries (except for compensation for the purchase, paid by the buyer to the agent (the intermediary) for rendering of services in its representation abroad, connected with purchase estimated (imported) the goods), expenses on container (if it is considered as a unit with the goods) and packing;

- The meted cost of raw materials, materials, tools, stamps,

Details, cost of the designing or other similar works used by manufacture of the imported goods directly

Given by the buyer to the seller it is free or for a reduced price, not included in the price of the given goods;

- Part received as a result of the subsequent sale, the order a different way or uses of the imported goods of the income (gain) which expressly or by implication is due to the seller;

- Shipping charges (transportation) of the goods to the airport, seaport or other place of arrival of the goods on the Customs union customs territory;

- Expenses on loading, unloading or an overload of the goods and carrying out of other operations connected with their transportation (transportation) to the airport, seaport or other place of arrival of the goods on the Customs union customs territory;

- Expenses on insurance in communication by loading and (or) transportation of the goods;

- Licence and other similar payments for use of objects of intellectual property.

Thus, for the first method tax base is customs cost which develops of the price paid (coming under payment) for the goods, and additional charges to the given price.

As it has already been noted, the second for applicability is the sixth (reserve) method which, as a matter of fact, is considered auxiliary. It speaks that at customs bodies on places not always have the information on the prices on homogeneous (a method 2), identical (a method 3) to the goods or on structure and accounting of the prices by the supplier (methods 4 and 5).

The reserve method is convenient enough for application because it helps to overcome a number of the restrictions established concerning the previous methods. In particular, it is supposed:

- To take for a basis cost of the transaction with the identical or homogeneous goods made in other country, not being country in which had been made the estimated goods (restriction 2 and 3 methods);

- Not to consider limiting 90-day term during which the identical or homogeneous goods should be sold for export on the customs territory of the Customs union and are imported on the Customs union customs territory (restriction of methods 2 and 3);

- To take for the basis customs cost of the goods identical or homogeneous by it defined according to methods 4 and 5, i.e. the given rule allows to apply 2 and 3 methods more flexibly;

- To deviate 90-day term established by item 3 of item 8 of the Agreement from 25.01.2008 at application of 4 methods.

Thus, at application of the sixth method are actually used 1 - 5 methods, but without a number of restrictions that allows to use more flexibly rules of definition of customs cost of the goods.

One more obligatory element of legal structure of the customs duties is the tax period. On the basis of item 1 with. 55 NK under the tax period it is necessary to understand the Russian Federation calendar year or other period of time with reference to separate taxes after which termination the tax base is defined and the sum of the tax which is coming under to payment is estimated. The tax period can consist of one or several accounting periods. As marks D.V.Vinnitsa, the tax period is closely connected with tax base and serves for an establishment of its time borders. At the same time, under the fair remark Of this year Pepeljaeva, concerning single taxes (which the customs duties are) the tax period is not established [212 [213]. In spite of the fact that now NK the Russian Federation does not provide single taxes, in world practice their application is extended enough. If to take not so far history of Russia and in our country single taxes, for example the tax to the property earlier were provided, passing as inheritance and donation.

Absence of necessity of an establishment of the tax period under single taxes speaks that the duty on tax payment arises at the moment of fulfilment of any action or approach of any event, i.e. such moment is obvious and does not demand standard fastening.

The tax rate of the customs duties represents size of charges on unit of tax base. Thus, the rate and tax base of the customs duties are narrowly connected among themselves - the kind of applied tax base predetermines a kind of the applied tax rate (and on the contrary). In this connection it is possible to allocate following kinds of rates of the customs duties:

1) ad valorem - established in percentage to customs cost of the assessed goods;

2) specific - established depending on physical characteristics in natural expression (quantities, weights, volume or other characteristics);

3) combined - combining specific and ad valorem

214

Rates.

Features of the mechanism of legal regulation of the customs duties, connected with the introduction of the Russian Federation into the Customs union and customs duties recognition not tax income, cause features of an order of an establishment of the rate of the given kind of obligatory payment. So, the order of an establishment of the rate will differ depending on customs duties kind.

In a case if we talk about the import (import) customs duties the order of an establishment of its rates is defined according to the customs legislation of the Customs union. As already it has been defined above, the Customs union is created with two main objectives: first, to eliminate customs borders between the state-participants, and secondly, to harmonise system of customs regulation. In turn, harmonisation of rates of the import customs duties is an integral part of creation of uniform customs space of the Customs union.

At the same time the similar order causes also weight of the difficulties connected with necessity of the coordination of positions of members of the Customs union concerning level of rates of the customs duties. It is not necessary to forget, that the import customs duties are a powerful protectionist tool. In force of existing differences of economy of the countries-participants of the Customs union caused by features of their geographical position, development of industrial base, degree of introduction of achievements of the scientific and technical progress, different requirements of societies of the state-participants etc., each country has the sights at level of [214] rates of the customs duties. So, for example, for Belarus and Kazakhstan which does not have the industrial base on manufacturing of cars, on the given goods, low rates are more favourable to Russia making cars which considerably concede on the quality western, high rates are more favourable. Similarly there is a situation and on other commodity groups. In this connection concerning an establishment of rates of the customs duties the HARDWARE state-participants should reach a consensus, and it leads to that in the conditions of the Customs union the import customs duties lose the flexibility as a national economy protection frame.

Now rates of the import customs duties are established by Uniform custom duties of the Customs union from 16.07.2012 about which speech in detail went above.

Other order operates concerning rates of the export (export) customs duties. The matter is that such duties assess only internal manufacturers who take out the goods for limits of the customs territory of the Customs union. Thus, interests of the Customs union in this case are not mentioned at all. Hence, concerning an establishment of rates of the export customs duties of member state of the HARDWARE have all completeness of the power, they are not obliged to carry out consultation of other countries-participants, and all sums of the export customs duties come under to transfer in the country-exporter budget.

As is known, all obligatory elements of the tax should be fixed at law level. At the same time, now, the law defines only an order of definition of rates of the export customs duties, concrete level of rates is established at subordinate legislation level. And the order of an establishment of rates differs depending on a kind of the goods:

As it is defined in item 2 of item 3.1 of the Law on custom duties of the rate of the export customs duties on oil crude and the separate commodity classes, developed of oil, are established by the Government of the Russian Federation. At the same time now the Government of the Russian Federation establishes only formulas of calculation of such rates. Calculation of rates is made by the authorised Government body - Minekonomrazvitija Russia. And the concrete sizes of rates are lead up to the public not by the normative act, and information Minekonomrazvitija. Rates of the export customs duties on oil crude and the separate commodity classes, developed of oil, monthly are reviewed. The information on the calculated rates of the export customs duties on oil crude and the separate commodity classes, developed of oil, not later than 4 days to 1st day of calendar month in which the calculated rates will be applied, on an official site of the Ministry of economic development of the Russian Federation in an information-telecommunication network "Internet" [215 [216] [217] takes places;

Rates of the export customs duties on other groups of the goods are established by the Government of the Russian Federation. Now rates of the export customs duties are fixed by the Governmental order of the Russian Federation from 30.08.2013 № 754 «About the statement of rates of the export customs duties on the goods which are taken out from the Russian Federation for limits of the state-participants of agreements on the Customs union, and about a recognition become invalid for some certificates of the Government of the Russian Federation».

It is necessary to notice, that the fact of that the concrete size of the export customs duties is established at subordinate legislation level, does not testify yet about nezakreplennosti the given obligatory element of the taxation, and, as consequence, recognitions of not tax nature of the customs duties. It, in particular, has been confirmed time and again by the Constitutional court of the Russian Federation.

In the Decision from 11.11.1997 № 16-P the Constitutional court of the Russian Federation has noticed, that the Government of the Russian Federation within the limits of the competence provides carrying out in the Russian Federation uniform financial, including tax, politicians (article 114, the subparagraph parts of 1 Constitution of the Russian Federation) and carries out other powers assigned to it by the federal act (item 114, subitem ch. 1 Constitutions of the Russian Federation). In this connection KS the Russian Federation has come to conclusion, that the Government of the Russian Federation has the right to establish an order of collection of tax payment on the basis of the federal act and to concretise the standard positions established by the legislator defining essential elements of the tax obligation. On the basis of data

91 Q

Conclusion the Constitutional court of the Russian Federation in Definition № 193 recognised from 05.11.1999, that an order of definition of rates of the customs duties according to which their limiting size as the essential element of the tax obligation is established by the law, and rates on separate groups of the goods are concretised by the Government of the Russian Federation, does not contradict the constitutional concept of a lawful establishment of taxes and tax collections.

Besides, in Definition from 15.12.2000 № 294 Constitutional court of the Russian Federation has noticed, that investment with the federal act of the Government [218 [219] [220]

To the Russian Federation by the right to establish the rate of the export customs duties it is directed on timely elimination of a difference between constantly varying prices in the world market and the prices for domestic export production, maintenance of home market with the goods, which export can aggrieve to interests of the Russian Federation. Further KS the Russian Federation has specified that with reference to various kinds of the customs duties the law can establish both the sizes of rates, and criteria, conditions according to which they are defined, delegating corresponding powers to the Government of the Russian Federation. Hence, the right of the Government of the Russian Federation on an establishment of rates of the export customs duties serves the purpose of operative regulation of foreign trade activities and is not infringement of a principle of separation of powers. At the same time the Government of the Russian Federation has not the right to establish the rate of the export customs duties without the necessary basis on that.

All conclusions set forth above have been made by the Constitutional court of the Russian Federation still when the customs duties admitted the tax income of the federal budget. Proceeding from it, it is possible to draw a conclusion, that the establishment of rates of the export customs duties the Government of the Russian Federation does not break a principle of legislative fastening of obligatory elements of the taxation and, hence, cannot testify to not tax nature of the customs duties.

The order of calculation of the tax, under D.V.Vinnitsa's fair remark, represents «multiplane enough element of the taxation defining a procedure of payments of the sum of the tax on the basis of application of the established rate of the tax to base of the taxation, generated during the tax period».

The order of calculation of the customs duties means [221 [222]:

1) definition of the person making calculation of the tax. Under the general rule of the sum of the customs duties are estimated in payers independently, except for the cases provided TK the HARDWARE (or) international treaties of member states of the Customs union (item 1 of item 71 TK the HARDWARE).

For example, the customs duties are estimated in customs bodies concerning the goods sent in the international items of mail, in a case if concerning such goods customs declaration giving is not required. In that case, on the basis of item 316 TK the HARDWARE the customs duties sum is estimated in the customs body which is carrying out customs operations in a place (establishment) of the international post exchange with use of the customs credit order, the form and which order of filling are defined by the decision of the Commission of the customs union. Calculation of the sums of the customs duties, taxes is made on the basis of data on cost of the goods specified in documents, provided by certificates of the World post union and used for the customs purposes.

Besides, calculation can be carried out customs body at customs duties collecting (item 2 of item 76 TK the HARDWARE).

Updating of customs cost of the goods also can be made customs body. In that case updating can be made both to, and after release of the goods according to the accepted customs body the decision on updating of customs cost of the goods:

- By results of carrying out of the customs control before release of the goods;

- By results of carrying out of additional check and the customs control after release of the goods, including in connection with consideration motivirovannogo the written reference of the customs applicant (the customs representative), in a case if it after release of the goods it is revealed, that the customs applicant (the customs representative) declares doubtful data on customs cost of the goods, including the method of definition of customs cost of the goods is incorrectly chosen and (or) customs cost of the goods is defined.

Thus, the initiator of updating can be both the payer, and customs body. The basis for updating is detection by the specified persons of unauthenticity of data on customs cost of the goods, including in case of a wrong choice of a method of definition of customs cost of the goods and (or) definitions of customs cost of the goods (item 1 of item 68 TK the HARDWARE). It is important to notice, that difference of the size of customs cost declared by the customs applicant from a test objective level of customs cost according to the information, available customs body, is a sign of possible unauthenticity of the data presented at declaring and can form the basis for decision-making on carrying out of additional check, however is not good cause for decision-making on updating of customs cost of the goods. The order of updating is approved by the Decision of the Commission of the Customs union from 20.09.2010 № 376 [223].

After decision-making the payer is obliged to carry out independently updating of doubtful data and to pay the due sums of the customs duties estimated taking into account corrected data. Disagreement of the payer with the decision will attract for it different consequences depending on the moment when updating has been made:

- If it has been carried out before goods release - to the customs applicant who has not paid in time, not exceeding term of release of the goods, the sum of the charged in addition customs duties, refuse in release of the goods;

- If it occurs after release of the goods - updating of the declared customs cost of the goods and recalculation of the customs duties coming under to payment, taxes is carried out by customs body.

In case of independent updating of customs cost, the customs body is obliged to specify a source of the used data, to settle an invoice the corrected customs cost of the goods in DTS, and also fills form KTS. The customs body is obliged to direct second copy DTS and KTS to the customs applicant is perfectly in order and in the terms established by Order of the control of customs cost of the goods for updating

224

Customs cost after release of the goods.

Also the customs body has the right to make the decision on carrying out of additional check of release of the goods, to make release of the goods, but only under condition of granting of maintenance of payment of the customs duties and taxes;

2) definition of object of the taxation - to the payer needs to be defined, whether the moved goods come under to taxation by the customs duties and if is not present - to estimate the tax only from those goods which are assessed with the customs duties;

3) definition of the applied rate - the payer should correlate a kind of the moved goods with the rate of Uniform custom duties corresponding to it. It is important to define also, what rate is applied for this or that date. Under the general rule for calculation of the customs duties the rates operating at date of registration of the customs declaration by customs body if other is not provided TK the HARDWARE and (or) international treaties of member states of the Customs union (item 1 of item 77 TK the HARDWARE) are applied;

4) calculation of tax base. At the given stage important correctly to choose and apply a method of definition of customs cost of the goods and-or correctly to estimate quantity of the goods; [224]

5) currency definition in which there is a calculation of the customs duties. Under the general rule calculation occurs in currency of that member state of the HARDWARE to which customs body the declaration moves;

6) definition of privileges which can or reduce taxable base/rate or completely release from a duty on payment of the customs duties. It will be a question of customs privileges in the following paragraph in more details;

7) definition of the sum to coming under payment of the customs duties. Definition of the definitive sum to coming under payment of the customs duties is carried out by means of multiplication of the tax base reduced by privileges given to the payer, on corresponding to a kind of the moved goods the rate. In a case if the tax base is estimated in a foreign currency, it also is multiplied by a course of the Russian rouble in relation to the given currency for date of registration of the declaration;

8) customs declaration filling is a stage of documentary fastening of the received result.

According to item 57 NK the Russian Federation terms of payment of taxes are defined calendar date or the expiration of the period of time estimated on years, quarters, months and days, and also instructions on event which should come or occur, or action which should be made.

Now terms of payment of the customs duties are established:

1) the Customs code of the Customs union in articles 81, 161, 166, 172, 197, 211, 214, 227, 228, 237, 250, 261, 274, 283, 290, 300, 306, 344 and 360 TK the HARDWARE;

2) International treaties of member states of the Customs union. Among such international treaties it is possible to allocate:

The agreement concerning free (special, special) the economic areas on the customs territory of the Customs union and a customs procedure of a free customs area concerning terms of payment of the customs duties concerning the goods, placed (placed) under a customs procedure of a free customs area (item 16);

The agreement between the Government of the Russian Federation, the Government of Byelorussia, the Government of Republic Kazakhstan from 18.06.2010"About free warehouses and a customs procedure of a free warehouse» [225 [226] [227], establishing terms of payment of the customs duties concerning the goods, placed (placed) under a customs procedure of a free warehouse;

The agreement between the Government of the Russian Federation, the Government of Byelorussia and the Government of Republic Kazakhstan from 18.06.2010"About an order of moving by physical persons of the goods for a private use through customs border of the Customs union and fulfilment of the customs

227

The operations connected with their release », defining terms of payment of the customs duties concerning temporarily imported vehicles, and also other goods for a private use, placed under a customs procedure of customs transit;

3) the legislation of member states of the Customs union. The legislation of the Russian Federation establishes terms of payment of the customs duties:

- At moving of the goods by pipeline transport (item 312 of the Law on customs regulation);

- At regular moving through customs border of the goods the same person during the certain period of time (item 213 of the Law on customs regulation);

- At moving of the goods to not collected or disassembled kind, including an incomplete or not complete kind, during the established period of time (item 215 of the Law on customs regulation);

- At import and export of the goods on a transmission line (item 313 of the Law on customs regulation);

- The goods placed under a special customs procedure (payment terms are established item 36 of the Governmental order of the Russian Federation from 03.11.2011 № 911 «About the statement of Rules of application of a special customs procedure concerning the foreign goods imported into the Russian Federation intended for the organisation and carrying out of XXII Olympic winter games and XI Paralimpijsky winter games of 2014 in of Sochi, and a recognition become invalid for some certificates of the Government of the Russian Federation»).

As we see, the operating customs legislation contains developed enough list of terms of payment of the customs duties. It is caused by differences in applied procedures, a kind of the moved goods, the fact of performance of those or other obligations or actions, approaches of events etc. Thus, concerning the customs duties, unlike the majority of other taxes, uniform term of payment is not fixed.

Last obligatory element of legal structure of the customs duties is the order of its payment. Now in tax laws does not contain legal definition of the given element. E.M.Ashmarina defines an order of payment of the tax as «techniques of entering by the tax bearer or the fiscal agent of the sum of the tax in the corresponding budget (fund)». In relation to the customs duties the order of their payment means: [228 [229] [230]

1) state definition in which budget the customs duties will be paid. Under the general rule payment (collecting) of the customs duties occurs in member state of the Customs union which customs body makes release of the goods, except for the goods which have been let out in a customs procedure of customs transit or in which territory the fact of illegal moving of the goods through customs border is elicited.

With reference to a customs procedure of customs transit the customs duties are paid in member state of the Customs union which customs body has let out the goods according to a customs procedure of customs transit, except for a case when it will be established, that the goods placed under procedure of customs transit, are in territory of other member state of the Customs union. In that case the duty is paid in this member state;

2) definition of currency of payment - the customs duties are paid in currency of member state of the customs union in which the customs duties come under to payment;

3) the decision of a question on the form of calculations - the customs duties can be paid:

In the cash form - such order is supposed only concerning the physical persons moving the goods for a private use. In that case payment occurs in cash desk of customs body. In the relation of legal bodies possibility of payment is excluded by cash;

In the non-cash form, by means of a remittance;

With application of the devices intended for fulfilment of operations with use of electronic instruments of payment, without possibility of reception (delivery) of cash money resources, and also through payment terminals or cash dispenses;

3) account definition on which it is necessary to make transfer of money resources:

The import customs duties, except for the import customs duties concerning the goods for a private use, are paid into the account defined by the international treaty of member states of the Customs union;

The export customs duties are paid into the account of Federal exchequer;

Special, antidumping and countervailing duties are paid:

- Into the account defined by the international treaty of member states of the Customs union, in a case if such duties are established by the Customs union Commission;

- Are paid into the account of Federal exchequer, if they

Are established by the customs union Commission, but have preliminary character;

- Are paid into the account of Federal exchequer, if they

Are applied by the Russian Federation unilaterally (including cases when such duties have preliminary character);

The customs duties concerning the goods for a private use are paid into the account of Federal exchequer;

4) the decision of a question on the moment of payment of the customs duties. So, on the basis of item 2 of item 116 of the Law on customs regulation at will of the payer the import customs duties can be paid before customs declaration giving;

5) the decision of a question on an applied order of payment of the customs duties. The analysis of the operating customs legislation allows to allocate two order: the general and centralised. Feature of the centralised order consists that:

- It is applied on the basis of the agreement which can be concluded with the federal enforcement authority authorised

In the field of customs business, or the customs bodies defined by federal enforcement authority, authorised in area

232

Customs business. The agreement form is approved by Order FTS the Russian Federation from 02.11.2011 № 2245 [231] [232] [233];

- Such order supposes obligation execution on payment of the sums of the customs duties by their entering into corresponding accounts for the goods assumed to import to the Russian Federation or export from the Russian Federation for the certain period without dependence from the customs declaration will be submitted to what customs body on such goods;

- It gives the chance not to give to the payer to customs body the payment documents confirming payment of the customs duties.

Proceeding from all aforesaid it is possible to notice, that in the current legislation all obligatory elements of the customs are established

Duties as tax. The carried out research has not given the bases for reference of the customs duties to not tax incomes and has once again proved a conclusion about the tax nature of the given kind of payment.

<< | >>
A source: Alferev Timur Pavlovich. FINANCIAL AND LEGAL REGULATION OF CUSTOMS TARIFF ACTIVITY AS A SOURCE OF THE FORMATION OF THE BUDGET OF THE RUSSIAN FEDERATION Thesis for the degree of candidate of legal sciences. Moscow 2014. 2014

More on topic § 1. Obligatory elements of legal structure of the customs duties:

  1. § 2. Facultative elements of legal structure of the customs duties
  2. the Chapter IV. Legal structure of the customs duties
  3. clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty as means of maintenance of realisation of functions of the customs duties
  4. § 1. Obligatory elements of the maintenance of organizational unity of the legal person
  5. § 2. Legal nature of the customs duties
  6. the Financially-legal nature of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  7. Formation of financially-legal regulation of clearing of payment of the customs duties concerning the Russian Courts of Admiralty
  8. § 3.2. Elements of structure of administratively-legal status not state organisations
  9. the export customs duties on petroleum.
  10. § 2. The Customs duties as the budgetary income
  11. § 3. Issue elements as difficult legal structure.
  12. principles of clearing of payment of the customs duties concerning temporarily taken out Russian Courts of Admiralty
  13. § 1. Concept of custom duties and customs-tariff regulation
  14. a role and a place of elements of organizational structure of corporation in formation of anticorruption legal mechanisms.
  15. § 2. Legal regulation of the mechanism of distribution of customs payments in the Customs union
  16. legal regulation of passage of customs service by employees and federal civil servants of customs bodies of the Russian Federation.