Although the authorization does not directly modify the rules applicable to imports, its scope has led to the question of what doors this delegation of powers regarding imports opens and what the limits of the measures adopted from it could be.
Control of value in imports: the questions raised by the delegation of powers. (Image: Andina)
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The approved change: a new customs control
Law No. 32527, recently approved by the Congress of the Republic, grants the Executive Branch the power to establish a special procedure to control the declared value of imports for consumption.
This control will be activated only in cases where specific risk indicators are identified that suggest a possible undervaluation of goods. The objective is to allow the National Superintendency of Customs and Tax Administration (Sunat) to intervene administratively and quickly, without the need to immediately resort to criminal proceedings, as was done previously.
This change does not directly modify the rules applicable to all imports, but rather introduces an additional control mechanism for those that are considered high risk.
Through this control, Sunat will be able to verify in a more technical and timely manner imports that present suspicions of undervaluation, in order to prevent goods from entering the country at prices lower than their real value, affecting tax collection and fair competition in the market.
Undervaluation in imports? It occurs when an importer declares to Customs a lower value than what he actually paid for the merchandise, in order to reduce the taxes associated with the import.
A response to undervaluation
For Jesús Ramos, partner of DLA Piper Perú, the explanatory memorandum of the law is based on the recognition of a structural problem in the customs administration, linked to the undervaluation of merchandise in the import regime.
As he explains, this phenomenon not only affects collection, but also limits the State’s ability to respond to operations that distort the real value of imports. “The current scheme has proven to be not very agile in dealing with these behaviors”he points out.
Along the same lines, Juan José Assereto, partner at Zuzunaga & Assereto Abogados, maintains that the purpose of the measure is to make control more efficient, allowing the customs authority to act more directly against signs of fraud.
In his opinion, the objective is not to toughen the regime, but to reduce the spaces that today allow undervaluation to persist without immediate consequences.
From this perspective, both agree that the new approach seeks to reorganize the incentives of the customs system, so that declaring unrealistic values is no longer a profitable practice.
Control of value in imports: the questions raised by the delegation of powers. (Image: Andina). (Image: Andina)
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Recover administrative control over criminal proceedings
Ramosexplains that this scheme has led to undervaluation being treated as a problem that can only be solved at the end of the road, when the damage has already been done.
From their perspective, the delegation of powers would allow the customs authority to be provided with more direct administrative toolsto act before the conflict escalates to criminal proceedings.
This does not eliminate the criminal sanction, but it does introduce a faster previous responseaimed at the collection of omitted taxes and the immediate correction of behavior.
In a similar vein, Assertpoints out that the problem is not the lack of sanction, but the loss of operational control when cases leave the administrative scope.
In his opinion, a specific administrative procedure would allow Sunat to maintain the conduct of the process, impose fines and demand regularizations without depending on times and decisions from other instances. From this perspective, the delegation does not seek to harden the system, but rather to make it more efficient in the face of practices that today find room to persist.
Are personal imports less than US$200 in danger?
Although the delegation of powers does not expressly point to the regime of low value importsspecialists agree that this scheme is part of the context of the problem that the Executive Power seeks to confront.
The US$200 threshold, designed to facilitate personal consumption and cross-border electronic commerce (less than that value, taxes are not paid when importing), has been used in some cases as a way to make “ant purchases” for a commercial purpose.
To Katarzyna Dunin Borkowski, specialist in tax lawthis use of the low value regime shows the need to improve control mechanismswithout necessarily implying restricting the right of consumers to import goods for their personal use.
In his opinion, reducing or eliminating the threshold could affect trade and access to products, while the real challenge is in ensure that the declared value reflects the reality of the operation.
Ramos y Assert warn that the debate should not focus on canceling or discouraging low-value imports, but rather on prevent the regime from being denatured.
Both maintain that reinforcing value control allows maintaining the benefit for personal consumption, but closing the spaces that today facilitate undervaluation and avoidance practices, without the need to modify the current threshold.
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