Organic Customs Law
Decree No. 1,416 of November 13, 2014 was published in Official Gazette Extraordinary No. 6,155 of November 19, 2014. Through said Decree, the President of the Republic issued the Decree with the Status, Value, and Force of Law of Amendment to the Organic Customs Law (the “Decree-Law”) that amended the Organic Customs Law published in Official Gazette No. 38,875 of February 21, 2008.
Following are the most significant changes included in the Decree-Law:
1. The Minister of the Popular Power with competence over finance matters is given broader powers since the Decree-Law establishes that said Minister may increase up to the maximum limit established in the Decree-Law and reduce the import, export or transit taxes for all or some of the goods originating from or intended for certain countries or persons. Also, he/she may tax up to the maximum limit established in the Decree-Law the aforementioned goods when they are categorized as goods of not taxed importation, exportation, or transit.
2. The National Superintendence of Customs and Tax Administration’s powers are removed, which powers will be exercised by the Customs Administration in general.
3. With respect to loading, unloading, and storage of goods, it was established that carriers, porters or their legal representatives must register the waybills with the relevant customs office, through the automated customs system, no later than 48 hours in advance of the time of arrival or departure of the vehicle, in the case of ocean freight and up to 4 hours in advance, in the case of air or land freight. In any case, the unloading of goods may not be carried out without the relevant waybill having been registered with the Customs Administration.
4. A new chapter is created in relation to the customs regimes, which establishes that the goods that enter or leave the national territory may be intended for any of the customs regimes authorized pursuant to the terms of the customs declaration or for any other destination prescribed in the Decree-Law. The customs regime is defined as the juridical treatment applicable to the goods subject to customs control, according to the declaration of will contained in the customs declaration.
5. It was established that all goods intended for a customs regime must be subject to a customs declaration for the relevant regime, through the automated customs system. Said declaration must be made by the person/entity evidencing his/its legal capacity as consignee, exporter or sender. The party declaring the goods will be deemed to be the owner of the same and will be subject to the obligations and fees resulting from the relevant customs regime. Also, two forms of declaration were established, the advanced information declaration (declaración anticipada de información) for imports and the final declaration for a customs regime (declaración definitiva a un régimen aduanero) or single customs declaration (declaración única aduanera).
6. The advanced information declaration is to be obligatorily filed by the importers, through their customs agents, with the Customs Administration in order for the goods to enter the country in the terms established in the Decree-Law.
7. It was established that after the customs declaration has been registered, the party making the declaration will be deemed to be notified of all immediate control actions to be exercised by the Customs Administration with respect to the goods declared.
8. It was established that the certificate of inspection of the goods inspected out of the primary customs zone must indicate the period of time for them to be sent to the customs, which period may not exceed 30 calendar days after the date of the inspection. If upon the end of said period of time the exportation has not been actually made, the procedure will be deemed to be abandoned and the inspection will be deemed to have no effects whatsoever.
9. Payment of taxes, duties, and other customs charges for importation must be made at the time of registration of the customs declaration or before such time.
10. Refunds of import taxes due to wrongful or excess payments will be made in accordance with the procedure for recovery of monies established in the Organic Tax Code (“OTC”). Likewise, it was established that no requests for tax refund or set off on account of losses or damages supervened after the time of the inspection will be admitted after payment of the self-assessed or customs-assessed duties has been made.
11. It was established that the OTC will govern also the matters related to the means of extinguishment of customs obligations, when applicable, as well as the means of extinguishment of customs obligations for destruction, awarding, and auction of the goods pursuant to the Decree-Law.
12. It was established that the consignee, exporter, or sender, if any, must pay the expenses derived from the destruction of abandoned goods or from the imposition of a penalty of seizure finally determined.
13. A new chapter was created concerning the Customs Administration ancillary entities, which must comply with the requirements, obligations, and prohibitions, among others, established in the Decree-Law. The ancillary entities of the Customs Administration include duty free shops, which will be penalized with a fixed fine of 100 Tax Units (“T.U.”) for selling goods to persons other than travelers in transit or who enter or leave the country; for selling goods at passenger transportation vehicles that do not cover international routes; and for not complying with the conditions and obligations established in the Regulations.
14. A new entity was created and called Authorized Economic Operator (Operador Económico Autorizado), which will be the legal person domiciled in the country involved in the international logistic chain that will serve to conduct simplified customs control and clearance procedures.
15. A new title was included and called Customs Control (Del Control Aduanero). It comprises all the measures adopted by the Tax Administration in order to audit, verify, supervise, and evaluate the compliance with the Decree-Law and its Regulations, as well as the other rules regulating the entry and stay of goods in the national territory and their departure from the same and the activity of the natural or legal persons that intervene in the international commerce operations. Said customs control may occur before, during, or after the clearance and it may be permanent according to the terms established in the Decree-Law.
16. The rules relating to the customs-related unlawful act of smuggling were suppressed.
17. It was established that when two or more customs violations penalized with pecuniary penalties are present, the highest penalty will be applied but increased by adding half of the other penalties. The concurrence of violations will be applied if the penalties are imposed in the same procedure.
18. The indexation of fines was established in the same terms prescribed in Paragraph Second of article 94 of the OTC, when they refer to the customs value of the goods in the Decree-Law. If the time of the commission of the unlawful act may not be determined, the time at which the Tax Administration became aware of the same will be taken into account.
19. The penalties established for the carriers, porters or their legal representatives were increased from fines ranging between 5 and 50 T.U. to fixed fines of 30 or 50 T.U., as the case may be.
20. The companies engaged in consolidation of freight (consolidación de carga) are penalized with fixed fines of 2 and 50 T.U., as the case may be. Authorized customs sites, warehouses or deposits are penalized with fixed fines of 30, 50, 100, 550, and 1,000 T.U., as applicable. Customs agents and agencies are also penalized with fixed fines of 50, 100, 550, and 1,000 T.U., as the case may be.
21. A new chapter was created concerning the penalties of the Customs Regimes in Title VII. It is called Customs-related Unlawful Acts (“Del Ilícito Aduanero”) and establishes, among other things, the penalties of seizure and withholding of goods when said customs regimes are applied to goods the importation of which is prohibited or goods subject to any restriction or requirement for their introduction to the country.
22. The violations derived from the declaration of goods at customs were increased to fixed fines of 15, 30, 50 T.U., as well as the events of the same, which include: (i) when the declaration relating to the foreign currency or its conversion into national currency is incorrect; (ii) when the imported goods are subject to antidumping or compensatory rights established by the competent official entity and they have not been declared; (ii) when the regularization of the single customs declaration is not made within the period of time established in the cases of urgent shipments and advanced declaration of information; among others.
23. The responsible parties of international ocean or air carriers that operate in the country or the service companies that provide assistance to them will be penalized with a fixed penalty of 550 T.U., for providing goods to persons other than travelers or crew members, as well as for the use of the same for a purpose other than that prescribed for the benefit of such regime and for the failure to comply with the conditions and obligations established in the Regulations.
24. With respect to remedies and consultation, it was established that any person who considers that an administrative act of the Customs Administration has caused a prejudice to him/her may file the relevant administrative and judicial remedies with the competent authorities following the procedures prescribed in the OTC.
The Decree-Law will become effective 60 calendar days after its publication in the Official Gazette of the Bolivarian Republic of Venezuela.
In order to access the Decree-Law, please click here.
“NOTE: THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY SPECIFIC MATTER AND ITS CONTENT ARE INTENDED AS A MANAGEMENT ALERT AS TO CURRENT DEVELOPMENTS IN VENEZUELA, ANY SPECIFIC LEGAL QUESTIONS REGARDING THE POSSIBLE APPLICATION OF NEW OR PROPOSED LEGISLATION TO PARTICULAR SITUATIONS SHOULD BE ADDRESSED TO TRAVIESO EVANS ARRIA RENGEL & PAZ.