BIFAlink
Legal
www.bifa.org
instructing them, or • Indirect, where the Customs Agent shall act in his own name although instructed by a person. Paragraph 21(2) of TCTA 2018 states that both when a Customs Agent is appointed and when their appointment is withdrawn, this must be reported to HMRC in accordance with any regulations made by HMRC Commissioners. The effect of such an appointment as Customs Agent is dealt with under Paragraph 21(3), which states that anything done by or in relation to the agent under this part of the TCTA 2018 is regarded as having be done by or in relation to the Principal and not the agent – in other words, the instructing party. There is one exception to paragraph 21(3), being if a Customs Agent acts as an Indirect Agent. In such cases both the Indirect Agent and the instructing party who is referred to as ‘the principal’ are liable for the import duty Paragraph 21(6) deals with cases where the Direct Agent may still be liable for the import duty if the appointment of the Agent has not been disclosed to HMRC as required under paragraph 21(2) as set out above; and if the agent acts at a time where their appointment has been withdrawn; when the agent purports to have authority but has not been given such authority; and when the declaration made by the agent for a Customs procedure and the declaration has not been made in accordance with the simplified Customs declarations provisions. Customs debt Clause 7 of BIFA 2021 STC provides for the Company acting as Direct Agent for the Customer so that it is the Principal who is responsible for the Customs debt. It is advisable to get a signed authority to act as your Customer’s Direct Agent so that if you are requested to justify your authority you are able to produce this to HMRC. It is also advisable, just in case you are taken to be jointly and severally responsible for the import duty or deemed to be an Indirect Agent of a customer outside the UK, that you seek a deposit or guarantee from your customer to cover potential liabilities to avoid the need to recover the duty from your customer if HMRC seeks payment from you, particularly if they are in a jurisdiction where it may be difficult to make recovery. The text of Clause 7 of the BIFA 2021 STC is different to previous versions of the BIFA STC owing to the change in legal name and reference now being to ‘Direct Agent’ and the TCTA 2018.
Know your BIFA Standard Trading Conditions: Clause 7 In this month’s examination of the BIFA Standard Trading Conditions (STC) we reach Clause 7. Representation is a complex subject and BIFA members are recommended to study our publication A Guide on the Appointment and Responsibilities of a Customs Agent , which can be found at the BIFA website
Comment on Clause 7 Section 21 of the Taxation (Cross-border Trade) Act 2018 (TCTA 2018) states under the heading ‘Customs Agents’ at Section 21(1) that a person may appoint any other person (‘a Customs Agent’) to act on their behalf to either make Customs declarations in the name of the person they act for (‘a Direct Agent’) or to make Customs declarations in their own name (‘Indirect Agent’). Paragraph 21(1) (a) and (b) confirms the definition of each type of agent as follows: • Direct, where the Customs agent shall act in the name of and on behalf of the person
Freight Forwarders should always have evidence that their relationship with their customer is as a ‘Direct Agent’ and correct incorporation of the BIFA STC in contracts with the customer are another piece of evidence of this. CLAUSE 7 In all and any dealings with HMRC for and on behalf of the UK established Customer and/or Owner, the Company is deemed to be appointed, and duly empowered to act as a Direct Customs Agent only, to make Customs declarations in the name of the Customer (Principal) as its ‘Direct Agent’.
18
October 2022
Made with FlippingBook Annual report maker