Policy & Compliance
declaration on behalf of a NETP the Customs agent can only represent it on an Indirect Customs agent basis. It is essential to bear this in mind in view of the comment regarding the inclusion of VAT in the debt. This is especially true, and financially concerning, for the Indirect Customs Agent if the NETP is using Postponed VAT Accounting (PVA), where this tax may be accumulating in relation to a number of consignments over a three-month, or longer, period dependent on the frequency of the VAT return and the trader’s compliance with the timeframes for submitting returns. The balance of probability One of the issues with the TCTA is that currently there is no case law to refine the legal grey areas. For instance, the key phrase “the person knew, or ought reasonably to have known, that the information was false”. What does this term actually mean? There are differing views on this point, ranging from, at one side of the debate, that HMRC will take action when, for instance, a unit price of an item declared on an invoice is so obviously low it should be questioned, and written confirmation obtained from the importer, to, at the other end of the spectrum, action being taken
against Customs agents where the variation is relatively small and the arguments to substantiate the post-clearance demand lack detailed information. Until the first legal cases have been heard, and judgments made, it is difficult to give exact guidance. One certainty is that Members should be cautious when acting as a Customs intermediary, particularly on an indirect basis. It is essential to ‘know’ the party on whose behalf it is acting, retain documents and keep a record of any conversations and instructions received. Due to pending cases, it is unlikely that any further guidance will be forthcoming from HMRC. At least the TCTA 2018 is slightly more favourable towards the Customs agent than its predecessor, the Union Customs Code (UCC), because the latter increases the likelihood of the Customs agent BIFA has consistently warned its Members of the dangers of being an ‘indirect Customs agent’, where they become jointly and severally liable for any debt. This is having to self-represent for breaching the regulations. particularly true when they are representing a NETP, which is outside HMRC’s legal jurisdiction, thus increasing the likelihood of the Customs agent in effect becoming a self-representative and thus
liable for the whole debt. We are aware of several pending cases regarding representation which are likely to be heard in Tribunal in 2024. No two cases are the same and we know that some include additional issues such as Establishment and Valuation. However, as a leading freight forwarder quoted in the press stated: “No serious freight forwarder would be an Indirect Representative.” For further information on this subject contact Robert Windsor, BIFA member policy & compliance director TCTA legislation Member event BIFA Member Policy & Compliance Director, Robert Windsor, will be presenting a webinar on Thursday 20th September covering the complex
(r.windsor@bifa.org) “ The law is
clear on this, stating that “persons may make Customs declarations only if they are established in the United Kingdom or a specified place outside the United Kingdom”
issues of Customs Representation and Establishment – what to do and what to avoid. Sign up to attend via the QR code.
September 2023 | 21
www.bifa.org
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