The Spanish Customs Authorities (“SCA“) have released new guidelines (available only in Spanish) on provisional customs values and simplified declarations. The aim is to clarify the utilization of simplified declarations foreseen in Article 166 of the UCC due to the high number of queries from operators. The current guidelines supplement previous guidelines on this issue (our tax alert about them can be found here).
Through the new guidelines the SCA analyses the proper method to address situations where the customs value is not definitive and explains a new procedure introduced in relation to the lodging of supplementary declarations.
The following points might be highlighted:
- The SCA understands that the submission of simplified declarations foreseen on Article 166 of the UCC is the appropriate method to manage situations where the customs value is not definitive.
- The SCA states that the simplification procedure of Article 73 of the UCC is not generally appropriate in these cases, as simplified declarations of Article 166 UCC do not represent disproportionate administrative costs (pursuant to Article 71 (1) (a) of the UCC Delegated Act). So, as general rule, operators should apply for an authorization to lodge simplified declarations instead of applying for the simplification method of Article 73 UCC.
- The SCA based this approach on the Hamamatsu Photonics Deutschland case (Judgment of 20 December 2017, Case C-529/16), which contrasts the position of other EU Member States, such as Germany.
- The SCA explains that to deal with simplified declarations the operator should submit an authorization and apply a specific procedure to lodge provisional and supplementary declarations.
- Further, the guidelines outline a new method to address situations of “special complexity”. It is not perfectly clear what counts as a situation of “special complexity”. The guidelines state that they comprise those situations (i) when economic operators have contracts under which they have to pay royalties and it is impossible to calculate how much they will be at the time the goods are imported; or (ii) when economic operators apply periodic adjustments under their transfer pricing policy (“TP adjustments“).
This last point reflects the current stance of the SCA: In general TP adjustments shall be considered for customs value purposes and the most accurate way to report them is usually through simplified declarations. Nevertheless, we believe that a case-by-case analysis should be carried out, taking into account the particular type of TP adjustments and their dutiability.