The Administrative Court of First Instance of Thessaloniki ruled that the Customs Department unlawfully imposed an additional registration fee on the applicant following a new investigation regarding the retail price of the imported car, with case no. 88/2021 His decision on a case that our office successfully handled.
Specifically, it ruled that the imposition of the additional registration fee was not lawful because it was based on a document subsequent to customs clearance, that is, on a document that did not exist at the time of customs clearance of the vehicle, but was drawn up later after customs clearance, which was carried out on the basis of the initially issued certificate and the delivery of the vehicle by Customs to the applicant.
The following is the text of No. 81/2021 Decision of the Administrative Court of First Instance of Thessaloniki
Decision number: 88 /2021
THE
ADMINISTRATIVE COURT OF FIRST INSTANCE
THESSALONIKI
SINGLE MEMBERS
SECTION FIFTEEN
It sat in public in its audience on May 26, 2020, with judge Christina Giannopoulou, Judge of First Instance of Administrative Courts, and secretary Sultana Louloudi, judicial officer, to hear the appeal filed on 22-5-2019 (PR 2819/2019),
of ……………
against the Greek State, represented by the Governor of the Independent Public Revenue Authority (article 36 of Law 4389/2016) and, in this case, by the Head of the Thessaloniki Customs District, who was represented by a declaration under article 133 par. 2 of the CCP.
The Court, after studying the relevant documents.
He thought according to the Law. His judgment is as follows:
1. Because, with the appeal under consideration, for the exercise of which the legal fee was paid (see in relation to 277336561959 0719 0015 electronic fee), the appellant admissibly seeks the annulment of the 29/2019/11-4-2019 act of the Head of the First Customs House of Thessaloniki, by which he was charged with a difference in the registration fee for private use of a passenger car (Private Vehicle), amounting to 2,235.42 euros.
2. Because, Law 2960/2001 (“National Customs Code”, Official Gazette A' 265), as it was in force at the relevant time in this case, stipulates, in article 31, that “1. The State maintains its claims against the owner of the goods for duties, taxes and other charges that had not been collected, as well as for those that had been incompletely ascertained or collected. Amounts are considered to have been incompletely ascertained or collected when they were not ascertained or collected, in whole or in part, due to any omission made during the customs clearance of the goods, provided that this is apparent from the text of the customs document lodged, the acts relating to it and the other supporting documents attached to it, which specify the crucial elements for the correct ascertainment of the duties, taxes and other charges due. 2. In addition, amounts that were incompletely ascertained or collected are also considered to have been incompletely ascertained or collected if, during the subsequent audit, it is proven that the conditions laid down for the regime to which the goods have been subject were not complied with or that the certificates presented and used for preferential treatment of the goods are not authentic or valid. 3. What has been collected or has been certified and incompletely collected is additionally certified by an act of the Customs Authority and is collected by it in accordance with the provisions on the Collection of Public Revenues", in article 121, that "1. Passenger cars of tariff heading 87.03 of the Combined Nomenclature (Council Regulation EEC 2658/1987 of 23 July 1987, OJ of 07-09-1987) are subject to a classification tax on the taxable value as it is formed based on the provisions of article 126 of this Law and article 4 of law 1573/1985 (Government Gazette A' 201), as in force. 2. The registration fee rates of the previous paragraph are defined as follows: a) For cars that meet the specifications of Directive 98/69 EC or later: … .”, in article 128, that: “1. The obligation to pay the registration fee arises: - for Community vehicles and for those coming from third countries upon their entry into the country, …. 2. The registration fee becomes due and is paid before the vehicles are put into circulation and for the vehicles of articles 121, 122, 123 and 124 of this Code, no later than: - for those transported or dispatched from other Member States of the European Union (EU) on the 15th day of the month following the month in which the obligation to pay this fee arose. If the special declaration of paragraph 2 of article 130 of this Code is submitted before this day, the fee becomes due on the date of acceptance of the special declaration.", in article 130 that: "1. The owner of the vehicle or his legal representative is liable for payment of the registration fee. 2. For the certification and collection of the registration fee and the Value Added Tax (VAT) or for the granting of a final exemption for Community vehicles, a special declaration is submitted to the competent Customs Authority by the date on which the fee becomes due and in any case before the issuance of the registration permit. With the special declaration, which constitutes a title in favor of the State, the Value Added Tax (VAT) due is also collected. ... 6. Decisions of the Minister of Finance shall determine the type and content of the special declaration, the receipt and the registration certificate, as well as any other necessary details for the application of this article" and, in article 131, that: "The provisions of articles 31 and 32 of this Code shall apply mutatis mutandis to the charges on community vehicles.".
3. Because the above provision of article 31, paragraph 1 of law 2960/2001 has the same meaning as that of the previous regulation of article 29, paragraph 1 of law 1165/1918, namely that, in a case (in which the Community Customs Code does not apply and the importer is not attributed the commission of a customs offence of smuggling), a supplementary tax certificate is also available for incorrect interpretation or application of the law by the customs authority, which led to a different tax burden on the goods, as well as for incorrect assessment of the actual data of the goods, provided, however, that the crucial data for the correct determination of the amount of the customs debt arise from the relevant documents that were in the file of the specific case and were submitted during the customs clearance of the goods, and not from documents that are drawn up (including administrative acts issued) after the end of the customs clearance procedure. The above interpretation is consistent with the Constitution and, in particular, with the principles of legality and equality before tax burdens, given that these principles are applied in parallel with the also constitutional principle of legal certainty and the stability of administrative situations (including those that have been formed during the customs clearance of imported goods), which is of great importance in the field of tax law, as it is linked to the fiscal order and the general economic life of the country, and, weighed against the requirements arising from articles 4 (paragraph 5) and 78 (paragraph 1) of the Constitution, appears capable of justifying, in view of the wide margin of appreciation available to the national legislator in this regard, the above limitation of the possibility of imposing a supplementary classification fee ex post (after the end of the customs clearance procedure) in cases in which the Critical elements for the correct calculation of the corresponding customs debt arise from the documents in the customs clearance file of the goods, so that the average diligent taxpayer does not have reasonable confidence in the maintenance and non-overturn of his legal situation, which was formed in the context of this customs clearance (ad hoc Council of State 3412/2017 issued following a preliminary question).
5. Because, in the present case, from the review of the evidence in the case file, the following emerges: the applicant submitted, through his authorized customs agent, the ….. declaration of special consumption tax and other taxes (DEFK), for the purpose of customs clearance and receipt of a used passenger car, manufactured by MERCEDES -BENZ, model 212, engine capacity 2,134cc, with chassis number …….., year of registration 2015 and country of origin Germany. For this customs clearance, he submitted the necessary supporting documents, including the ….. declaration document with the types of equipment of the car under customs clearance (special verification form), in order to verify the declared taxable value of the vehicle and the determining elements of its configuration, so that the calculation and imposition of the registration fee can be carried out. According to the special verification form, the determining elements for determining the taxable value of the above car were calculated as follows: 1) basic retail price of 33,983 euros, b) value of extra equipment of 9,114 euros, i.e. a total retail value of 43,097 euros, and based on these elements, the registration fee was calculated at the amount of 6,164.39 euros, i.e. at a percentage of 48% on the taxable value of the car, amounting to 25,684.95 euros, after deducting the discounts and exemption of 50%, pursuant to par. 5 of art. 121 of law 2960/2001, which (fee) was paid by the applicant and on 21-12-2016 the relevant customs clearance certificate for the vehicle was issued. Subsequently, with the document of …/3-4-2018 of the Customs Region of Thessaloniki, it was notified to the First Customs Office of Thessaloniki that, following a review of the declared data by the Department of Tariff Procedures, Special Regimes and Values in certain verification forms, including the one in question, an error emerged in the initially determined basic retail price of the corresponding used passenger cars. Thus, the taxable value of the above car was calculated as follows: 1) basic retail price of 45,569 euros, b) value of extra equipment of 13,156.50 euros, i.e. a total retail value of 58,725.50 euros and based on these data, the registration fee was calculated at the amount of 8,399.81 euros, i.e. at a rate of 38.401% of the taxable value of the car, amounting to 34,999.22 euros. With these data and after taking into account the applicant's .... affidavit, on .... summons to a hearing served on him on 14-3-2019, the Head of the First Customs House of Thessaloniki issued the contested supplementary debit note, by which the applicant was charged with an unpaid registration fee of 2,235.42 euros.
6. Because, with the appeal under consideration, the appellant claims, among other things, that this act is unlawful, since it is based on the …/3-4-2018 document of the Head of the Customs Region of Thessaloniki, which is subsequent to customs clearance and not on the special consumption tax declaration and the documents attached to the customs clearance document, while the Greek State claims that the additional charge of the registration fee was made correctly since the certificate in question does not constitute new evidence that was received by the customs office after the customs clearance procedure, but was issued as a correct reassessment of the already existing supporting document.
7. Because, subsequently, and in accordance with the provisions set forth above, as interpreted in a previous paragraph of this judgment, the Court, taking into account in particular that the Customs Authority, for the purpose of attributing the legal dispute of the classification fee, relied on the no. …./3-4-2018 certificate of the Head of the Customs Region of Thessaloniki, issued after a new investigation regarding the basic retail price of the used cars corresponding to the vehicle in question, i.e. in a document that did not exist during the customs clearance of the vehicle, but was drawn up later, after the customs clearance, which took place on the basis of the initially issued certificate and the delivery of the vehicle from the Customs to the applicant, considers that the above difference in the registration fee was imposed on the applicant unlawfully (cf. Court of Justice 31/1997, 2169/2003, 50/2006), by the …/11-4-2019 imputation act of the Head of the First Customs of Thessaloniki, upon acceptance of the relevant reason for the appeal and the delay as irrelevant examination of the other reasons for this.
8. Therefore, following the above, the appeal under consideration must be accepted, the …/11-4-2019 supplementary assessment act of the Head of the First Customs House of Thessaloniki must be annulled, the fee paid must be returned to the applicant (277 par. 9 of the Code of Civil Procedure) and, in light of the circumstances, the defendant must be exempted from the applicant's legal costs (article 275 par. 1 of the Code of Civil Procedure).
BECAUSE OF THIS
He accepts the appeal.
Cancels the ../11-4-2019 supplementary imputation act of the Head of the First Customs House of Thessaloniki.
Orders the refund of the fee paid to the applicant
It exempts the defendant from legal costs.
The decision was published in Thessaloniki at an extraordinary public session in the audience of this Court on 14-1-2021
Thomas Kalokiris
Attorney at Law
Min. Doctor of Law, AUTH
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