Why have not cleared the Ukrainians massively confiscate cars

“Victims” of customs officers are increasingly complaining about the fact that you were not warned about the new rules.

After our publication that in Ukraine began to confiscate foreign commercial auto not cleared after their 20-day stay in Ukraine, the editors asked dozens of people with similar problems and complaints that they were not warned about the new rules. Quite a few of these messages on Internet forums. “In January, the machine went on temporary admission for a year. In early March (after the expository writing SCSU № 11.11/2-12.2/2172 March 5, 2013. – Ed.) Machines who have come under the scheme, was transferred to the transit of 10 days (or 20 days, depending on the purpose of the trip . – Ed.). In the end, I had exceeded the period of stay – a fine of 8.5 million USD! Now, every 10 days, I will cross the border. Well, that just live “- written by Alexander Goncharuk of Uzhgorod. “It may not be used for such a change for a letter! Even so suddenly! “- Outraged Victor Avliv from Kiev.

ENTRY. In the State Customs Service “Today,” saying that the rules – are not new, as the Customs Code came into force in 2012, and confirmed: “There are more cases of search of loopholes in the law on the import of cars imported for resale. Customs authorities tightened control over such illegal operations. A expository writing – it is an internal document for customs officers, who explains rules TK “. According to them, the deadline for commercial vehicles (they earn: carrying cargo, people, etc.) can not exceed 20 days. “But it has nothing to do with the importation for personal use. Ukrainians, who are at a consulate in other countries (they have a residence permit. – Ed.) Can enter Ukraine for a period up to the year “, – told us at the office. But in fact, even with a residence permit in EU Ukrainians can not buy a car – according to the law, the Ukrainians can only buy overseas real estate. “So my wife and I opened a company in Lithuania and bought her a car. So we will not violate TK: To Ukraine can drive non-residents (ie, foreign legal entity. – Ed.) “, – Said Alexander from Kiev.

CHANGES. Lawyers recognize that letter legally set deadlines, as in Article 108 TC spelled: “The temporary importation of vehicles for commercial purposes established by customs authorities.” That is, the Customs Service may own term limits for such cars in Ukraine, says lawyer Andrei Sidorenko. In addition, last year enacted a law (№ 4915) that changed the TC. Earlier, on commercial auto for personal purposes could enter Ukraine all employees, owners and co-founders of foreign firms. “Now that the car was for personal use, it must be owned or temporary use only the owner or co-founder of the firm. Accordingly, many of the “official” cars do not meet these requirements, “- says Sidorenko. If the driver exceeds the length of stay in Ukraine for commercial cars (more than 10 days), Article 470 TC says: “Caution or a fine of 500 non-taxable minimum incomes of citizens (8.5 million USD). In case of failure to pay the fine, the customs officers can send cars to shtrafploschadku (Article 108 of the LC).

Response of the Ministry of income and fees

Terms bring into agreement

“Article 108 of TC suggests that the length of stay of commercial cars in Ukraine should be tied to operations for which they are imported. If you clearly define the length of stay in Ukraine cars in the contract between an individual and a foreign company, then the customs authority will not be able to determine the period of temporary import is less than the period of the journey (this period may be a year. – Ed.). Otherwise customs violate the law, “- said the” Today “lawyer Stanislav Batrin.

Expert Comments

Andrey Sidorenko, a lawyer, law firm “Ilyashev and Partners”:

“The letter itself referred to by the Customs Service of Ukraine, has no legal force. But this letter, the Customs Service of Ukraine informs the head of the customs authorities of the actual change in the rules applicable to the import of cars.

It should be noted that the Customs Code does not use the term company car, instead use either the “official purpose vehicles” or as “vehicles for personal use.”

As a qualified service vehicle is determined depending on the use. If the vehicle is used to transport goods or passengers, it is regarded as a car service appointment. If not, then for personal use.

A year ago, the Law number 4915 changes were made to the Customs Code, which amended the definition of and procedure for the import of cars for personal use. Based on these changes now to ensure that the car was for personal use, it must be owned or loaned, instead of the previously required to register. Accordingly, many of the “official” cars do not meet these changing requirements, because of what difficulties arise with the use of in Ukraine.

Thus, the letter of the Customs Service of Ukraine, in itself does not change anything, it only draws attention to the changes in the law that occurred a year ago.

As for the time of stay car “for official use”, according to the Customs Code, the period of temporary importation of vehicles for commercial purposes is set by the customs authorities in each case.

Period of 20 days now informally applies to those transit vehicles “for official purposes”, that document that they were going to Ukraine for the purpose of commercial operations. Otherwise, the rule for them 10 days, as enshrined in Article 95 of the Customs Code. ”

Stanislav Batrin, PhD, director of the law firm Lions Litigate

“The Letter N 11.1/2-12.2/2172-EP from 05.03.2013 was traced another attempt of the State Customs Service of Ukraine illegally take over the legislative function of Parliament.

There are two reasons, because of which the Letter of the State Customs Service of Ukraine N 11.1/2-12.2/2172-EP does not deserve attention.

In – First, Ukraine is a party to the Istanbul Convention “On the Temporary Importation,” according to the provisions of which (Article 7 of Chapter III of Annex C of the Convention) vehicles commercial use may be used by third parties who have the proper user permission rights of temporary import and carrying out their activities in favor of the latter, even if they are registered or permanently residing in the territory of temporary admission. “In this sense, any attempt to restrict the use of such vehicles in Ukraine by persons within the legal relations with foreign companies (and the granting of such privileges only to the founders of these companies) are contrary to the Convention .

In – the second, to take into account that the restrictions in the form of a possible 20 – day stay car in Ukraine is void. You have the following aspects: the actual letter of the State Customs Service of Ukraine is not part of domestic law. On the other hand, even if the restrictions for a given factual situation would be imposed at the level of the Customs Code of Ukraine, we would have put the question of the constitutionality of the law before the Constitutional Court of Ukraine, as it is a limitation of those rights that are guaranteed by the Constitution and the Convention “On Temporary Admission “, which takes precedence over national law.

What – or the case in situations apply to citizens of sanctions in connection with the implementation of the provisions of Letters SCSU N 11.1/2-12.2/2172-EP need to seek protection of their rights in court. The Court can not accept the position of Customs. To do this, it is no legal basis.

We should pay attention to the fact that according to Art. 108 TAS term of the temporary importation of vehicles for commercial purposes established by customs authorities in view of the fact that these vehicles must be re-exported immediately after the transport operations for which they were imported. However,. 108 can not be interpreted arbitrarily and can not empower customs authorities to establish, for example, the 20 – day period at its discretion. Determination of the term – is a procedural function of the customs authority. At the same time, from Article 108, on the contrary, makes clear that such a term should be tied to operations for which they were imported. Therefore, if you follow the proper legal form relationships with a foreign company (for example, clearly define the length of stay on the territory of Ukraine in a contract between an individual and a foreign company), then in that case, the customs authorities will not be able to determine the procedural time of temporary import is less than term of the transport operation. If the customs authorities of the principle holds, it violates the law. “