Article 1.- Object
The purpose of this Supreme Decree is to adapt the Regulations of the Customs Crimes Law, approved by Supreme Decree No. 121-2003-EF, to the modifications made in Law No. 28008, Crimes Law, through the Legislative Decree No. 1542, in order to optimize the repression of illegal customs
Article 2.- Modification of the Regulation of the Customs Crimes Law
Modify articles 4, 5, 6, 8, 10, 12, 13, 14, 16, 17, 18, 20 and 21, the title of Chapter V and the First Final Provision of the Regulation of the Customs Crimes Law, approved through Supreme Decree No. 121-2003-EF, in accordance with the following texts:
“Article 4. Seizure
When the Public Prosecutor orders the seizure of merchandise, means of transport, goods and effects that constitute the object of the crime, as well as the instruments used for its commission, it requests that it be confirmed by the criminal judge, in accordance with the provisions of the Procedural Code. Penal. In the event that ships or aircraft are immobilized or seized, coordinate with the competent transportation authorities for their deposit and custody.
When SUNAT, in the absence of the Public Prosecutor, orders the seizure, it informs him of the fact, so that he can request its confirmation before the criminal judge, in accordance with the provisions of the Code of Criminal Procedure.
When an authority other than the Public Ministry and SUNAT orders the seizure:
a) Brings the fact to the attention of the Public Prosecutor and SUNAT of the seizure, within twenty-four (24) hours after it was made, so that the prosecutor requests its confirmation before the criminal judge, in accordance with the provisions of the Code of Criminal Procedure .
b) Makes the seized available to SUNAT, within a period of three (3) business days, counted from the day after it was made.
The SUNAT Public Prosecutor is empowered to participate in the proceedings scheduled for the confirmation of seizure, re-examination or variation”.
“Article 5. Recognition and appraisal
SUNAT proceeds as follows:
a) If there is a person detained for the crimes typified in the Law, carry out the physical examination and appraisal of the merchandise within twenty-four (24) hours of receipt, and immediately notify the result to the Peruvian National Police and the prosecutor’s office. competent to proceed to formulate the corresponding complaint.
If due to the nature or quantity of the goods, the place where they are located, or due to the timing of the intervention, the physical examination and appraisal cannot be carried out within the term indicated in the previous paragraph:
Immediately communicate this fact to the National Police of Peru and the competent prosecutor’s office, so that they can proceed in accordance with their powers and
Submit the report corresponding to the physical examination and appraisal of the merchandise to the Peruvian National Police and the competent prosecutor’s office, within a period of no more than three (3) business days, counted from the day after receipt of the merchandise.
b) If there is no detained person, it performs the physical examination and appraisal of the merchandise, and forwards the corresponding report to the competent prosecutor’s office and, if applicable, to the authority that made the merchandise available, within a period of no more than three (3) business days, counted from the day after the goods are received.
c) Submit the physical examination and appraisal report of the merchandise consigned in subparagraphs a) and b) by any means that allows verification of receipt by the recipient.
“Article 6. Rules to establish the valuation
The value of the merchandise is determined according to the following rules:
For the crimes of smuggling and customs reception in the cases established in literal a) of article 16 of the Law, successively and exclusively:
The value will be the highest price of an identical merchandise or, failing that, similar to the one that is valued registered in the Price Verification System – SIVEP, price lists, proformas, quotes, order or purchase orders , confirmations of value by suppliers or other official bodies, insurance companies, Internet, among others, obtained through investigations carried out by the Customs Administration.
The value will be the highest sale price in the domestic market of an identical or similar merchandise.
iii. The value obtained from a value study prepared by the Customs Administration.
The value obtained by the Customs Administration from a report prepared by a specialized expert, if warranted by the nature of the merchandise.
For the Crime of Customs Revenue Fraud in the cases established in literal a) of article 16 of the Law:
The Customs Administration must opt for one of the following rules taking the highest determined value:
a) The value will be the highest consigned in invoices, proformas, transport documents, insurance contracts, customs documents of the country of origin or origin, certificates of origin, accounting entries, electronic documents, contracts, among others, when the Customs Administration detects the existence in any of these documents of a value greater than that stated in the Customs Declaration of Merchandise.
b) Additional payments and/or money transfers that should have been part of the tax base of the declared merchandise will be added to the declared value, in cases where the Customs Administration detects their existence.
Additional payments and/or money transfers will be considered those made by the declarant himself, his representative or other persons related to him, the supplier, his representative or other persons related to him.
In the event that additional payments and/or money transfers cannot be individualized, the total amount resulting from these additional payments and/or transfers will be distributed pro rata based on the FOB value consigned in the numbered import declarations in the annual period in in which the additional payments were made or in another determined by the Customs Administration.
In cases not provided for in numeral i. from literal b. The following rules apply successively and exclusively:
a) The value will be the highest price of an identical merchandise or, failing that, similar to the one that is being valued, registered in the Price Verification System – SIVEP, price lists, proformas, quotes, purchase orders or purchase, confirmations of value by suppliers or other official bodies, insurance companies, Internet, among others, obtained through investigations carried out by the Customs Administration.
b) The value will be the highest sale price in the domestic market of an identical or similar merchandise.
c) The value will be determined based on the cost or value of the raw materials, materials and manufacturing costs in the country of origin or another supplier country or, failing that, in the domestic market, within the year before or after the importation of the merchandise to be valued.
d) The value obtained from a value study prepared by the Customs Administration.
e) The value obtained by the Customs Administration from a report prepared by a specialized expert, if warranted by the nature of the merchandise.
For the Crime of Traffic of Prohibited or Restricted Goods in the cases established in literal a) of article 16 of the Law, successively and exclusively:
The value will be the highest price of an identical merchandise or, failing that, similar to the one being valued, registered in the Price Verification System – SIVEP, price lists, proformas, quotes, purchase orders or purchase, confirmations of value by suppliers or other official bodies, insurance companies, Internet, among others, obtained through investigations carried out by the Customs Administration.
The value obtained from a value study prepared by the Customs Administration.
iii. The value obtained by the Customs Administration from a report prepared by a specialized expert, if warranted by the nature of the merchandise.
For all Customs Crimes in the cases established in literal b) of article 16 of the Law, successively and exclusively:
The value will be the highest export value of a merchandise identical or, failing that, similar to the one being valued, registered in the Price Verification System – SIVEP, price lists, proformas, quotes, purchase orders or sale, confirmations of value by consignees or other official bodies, insurance companies, Internet, among others, obtained through investigations carried out by the Customs Administration.
The value will be the highest of an identical or similar national or nationalized merchandise marketed in the domestic market, to which must be added the concepts that the FOB value normally includes.
iii. The value obtained from a value study prepared by the Customs Administration.
The value obtained by the Customs Administration from a report prepared by a specialized expert, if warranted by the nature of the merchandise.
The value of the merchandise will be expressed in dollars of the United States of America and for the purposes of literal a) of article 16 of the Law, the CIF value will be considered as the tax base. In the event that the value of the freight and insurance expenses paid for the transfer of the merchandise to the national territory is not known, the normally applicable freight rates and the Table of Average Insurance Percentages will be applied. When the aforementioned freight rates are not known, ten percent (10%) of the value determined in accordance with the rules established in this article will be applied for their calculation.
For the provisions of this article, the following shall be considered:
a) identical goods, which are the same in everything, including their physical characteristics, quality and commercial prestige.
b) similar goods, which, not being the same in everything, have similar characteristics and composition, which allows them to fulfill the same functions and be commercially interchangeable.
When it has not been possible to seize the merchandise, the estimate or determination of the value is made in accordance with the provisions of the preceding paragraphs, taking into account the information or evidence available to SUNAT.
“Article 8. Taxable base, exchange rate and fiscal prejudice
The tax base is expressed in United States dollars and is determined in accordance with the valuation rules indicated in these Regulations.
The exchange rate is the current sale rate on the date of the commission of the crime or administrative offense. If this cannot be specified, the date of its verification will be considered.
In the crime of defrauding customs revenue, the tax damage is the amount not paid or improperly obtained. In other crimes, it is determined based on the value of the merchandise. These rules also apply to cases of attempt.”
“Article 10. Administrative Actions in Customs Crimes
When SUNAT considers that there are indications of the commission of the crimes provided for in articles 1, 4 and 8 of the Law, and if the goods are in a customs clearance process, it stops it and, in accordance with the provisions of article 19 of the Law, immediately communicates the fact to the Public Prosecutor’s Office and makes the merchandise available for tax seizure, without prejudice to the subsequent preparation of the Report of Indications of Customs Crime, except as provided in the last paragraph.
When the goods are not subject to a customs clearance process, SUNAT prepares the Report of Indications of Customs Crime and, having become aware of their location, communicates it to the Public Prosecutor for actions under its jurisdiction, except as provided in the following paragraph.
In the case of the crime of defrauding customs revenue due to the improper allocation of the national subheading, SUNAT communicates the fact and the evidence to the Public Ministry after the execution of a subsequent control action and the preparation of the Report. of Indications of Customs Offense”.
“Article 12. Collection of what was not paid and what was improperly obtained and application of administrative sanctions
The penalties for the crime of Customs Revenue Fraud are applied without prejudice to the collection of taxes, surcharges, or any other amount not paid, or the exoneration, non-infringement, incentive, return, tax benefit, customs benefit or other benefit of any nature improperly obtained, for their own benefit or that of third parties, as well as the administrative sanctions that may apply”.
“CHAPTER V
AWARD, DESTRUCTION, AUCTION AND REWARD”
“Article 13. Destruction of Goods
SUNAT may dispose of the seized from its receipt and until the judicial process is concluded, in accordance with the provisions of the last paragraph of article 23 of the Law.
Before the destruction of the seized assets, SUNAT informs the judge and the prosecutor who are hearing the case so that, if necessary, they may order the actions they deem appropriate in order to perpetuate the evidence within the period of:
a) three (3) calendar days following receipt of the communication in the event of a state of emergency, urgency or necessity.
b) fifteen (15) calendar days following receipt of the communication in all other cases.
Once the response from the judge or the prosecutor has been received indicating that the evidence has already been perpetuated or, failing that, the period indicated in the previous paragraph to perpetuate the means of proof has expired, SUNAT proceeds to:
a) destroy the goods.
b) Report the destruction to the prosecutor or the competent criminal judge, as appropriate, within a period of ten (10) business days, counted from the day after it was carried out.”
“Article 14. Award or delivery of goods
SUNAT may dispose of the seized from its receipt and until the judicial process is concluded, in accordance with the provisions of the last paragraph of article 23 of the Law.
Before the adjudication or delivery of the seized, SUNAT informs the judge and the prosecutor who know the case so that, if necessary, they can take the actions they deem appropriate in order to perpetuate the evidence within the period of:
a) three (3) calendar days following receipt of the communication in the event of a state of emergency, urgency or necessity.
b) fifteen (15) calendar days following receipt of the communication in all other cases.
Once the response from the judge or the prosecutor has been received indicating that the evidence has already been perpetuated or, failing that, the period indicated in the previous paragraph to perpetuate the means of proof has expired, SUNAT proceeds to:
a) adjudicate or deliver what has been seized.
b) notify the prosecutor or criminal judge, as well as the Comptroller General of the Republic of the award of the goods and instruments or their delivery, within a period of ten (10) business days, counted from the day after once the reception by the beneficiary entity or institution has been completed.
The General Directorate of Public Accounting of the Ministry of Economy and Finance establishes the accounting procedures for the registration and control of seized and adjudicated assets, as well as their disposal.
“Article 16. Auction
Once the sentence declaring the judicial confiscation of the seized has been consented or enforced, the following proceeds:
a) The auction of precious metals, jewelry, precious stones or semi-precious stones, as well as luxury or highly expensive goods.
b) The auction of non-State ships and aircraft, as well as their parts and pieces. When they cannot be auctioned off, they are awarded or delivered in favor of the State.
c) The auction or any other form of disposition of means of land transport and heavy machinery, as well as their parts and pieces. This provision is applied without prejudice to the provisions of article 25 of the Law.
SUNAT dictates the necessary regulations for the application of this article”.
“Article 17. Complaint and exclusions to the payment of reward
The complainant expresses his willingness to take advantage of the reward at the time of making the complaint.
He is excluded from the reward payment:
a) the SUNAT official or server,
b) the member of the Peruvian National Police or the Armed Forces,
c) the prosecutor or judge,
d) any official or public servant who is linked to the intervention, investigation or prosecution of the crime and application of the sanction in accordance with the Law,
e) the person who is the author or participant in the reported crime,
f) the person who is related within the fourth degree of consanguinity and second degree of affinity with the persons indicated above.
“Article 18. Amount of the Reward
SUNAT sets the reward amount, the requirements and conditions for its application, in the reward procedure”.
“Article 20. Non-application of the sanction of confiscation
In accordance with the provisions of the last paragraph of article 38 of the Law, it is considered:
a) That the infraction has been committed only once when the offender has not been penalized with a firm resolution for the infraction provided for in article 36 of the Law, within the period of four (4) previous years computed from the date on which it was committed. committed the offense or was detected.
b) the value determined in accordance with the rules established in article 6, for:
1 verify that the value of the seized merchandise does not exceed one (1) Tax Unit,
b2 the nationalization of merchandise,
b.3 the payment of the fine established in article 36 of the Law.
The SUNAT dictates the other necessary norms for the acceptance of the non-application of the confiscation sanction.
“Article 21. Disposal of merchandise due to administrative infraction
The seized or confiscated merchandise that constitutes a material object of the administrative infraction are disposed of by SUNAT, in accordance with the provisions of the General Customs Law”.
“First.- If the investigation carried out by the Public Prosecutor concludes that there is no crime, it is up to the Customs Administration to return the merchandise after verifying if it is national merchandise or if it was nationalized in compliance with the legal formalities and the payment of taxes.
In the tax investigation or the judicial process for the crime of fraud of customs revenue, in which the amount defrauded is less than or equal to one (1) Tax Unit in force on the date of its commission, the prosecutor or the judge orders the conclusion and archiving of the tax investigation or judicial process and sends certified copies of the investigations or files to SUNAT, so that it assumes administrative competence and, if applicable, applies the sanctions provided for in the pertinent customs regulations.” .
Article 3.- Incorporation of articles to the Regulation of the Law of Customs Crimes
Incorporate articles 22-A and 23-A to the Regulations of the Customs Offenses Law, approved by Supreme Decree No. 121-2003-EF, in accordance with the following texts:
“Article 22-A. Substitution of the sanction of temporary internment of the vehicle by a fine
SUNAT replaces the sanction of temporary internment of the vehicle with a fine equivalent to one (1) Tax Unit:
a) when the vehicle is a ship.
b) for the vehicle not included in the previous literal, when it has not been seized within a period of one (1) year from the date the sanction resolution becomes final and consented.
SUNAT dictates the necessary regulations for the application of this article”.
“Article 23-A. Substitution of the sanction of temporary or definitive closure of the establishment by a fine
SUNAT replaces the establishment closure sanction with a fine equivalent to one (1) Tax Unit, when:
a) the establishment is closed, empty or unoccupied.
b) the establishment is shared with other taxpayers or users.
c) the establishment shares a single entrance or access door with the home of the offender or third party.
d) the address declared by the offender is non-existent.
e) any other case arises that makes it impossible to execute the sanction.
When the sanction that is replaced is the definitive closure of the establishment, the competent body is not requested to cancel the operating license or authorization.
SUNAT dictates the necessary regulations for the application of this article”.
Article 4.- Endorsement
This Supreme Decree is endorsed by the Minister of Economy and Finance.
FINAL SUPPLEMENTARY PROVISIONS
First.- Validity
This Supreme Decree enters into force the day after its publication in the Official Gazette El Peruano, except for the following provisions, which enter into force with the entry into force of the necessary regulations for its application issued by SUNAT:
a) Modifications of articles 16, 17 and 18 of the Regulations of the Customs Offenses Law, approved by Supreme Decree No. 121-2003-EF, provided for in article 2 of this Supreme Decree, in accordance with literal b ) of the First Complementary Final Provision of Legislative Decree No. 1542.
b) The modification of article 20 of the Regulations of the Customs Offenses Law, approved by Supreme Decree No. 121-2003-EF, provided for in article 2 of this Supreme Decree.
c) The additions of articles 22-A and 23-A to the Regulations of the Customs Offenses Law, approved by Supreme Decree No. 121-2003-EF, provided for in article 3 of this Supreme Decree.
The Third Transitory Complementary Provision of this Supreme Decree enters into force with the entry into force of the norm necessary for the application of literal c) of the previous paragraph.
Second.- Approval of complementary regulations
Within ninety (90) calendar days from the day after the publication of this Supreme Decree, SUNAT issues the necessary regulations for the application of the articles included in subparagraphs a), b) and c) of numeral 1 of the preceding First Complementary Final Provision.
TRANSITORY SUPPLEMENTARY PROVISIONS
First.- Judicial processes in process
For the application of the second paragraph of the Sole Complementary Transitory Provision of Legislative Decree No. 1542, the value of the Tax Unit used as a reference to establish the commission of the crime of Customs Revenue Fraud is the one established on January 1 of the year of the fiscal year in which it was committed. If the moment of the commission cannot be specified, the date of its verification is taken.
Second.- Early disposal of goods and instruments seized before the entry into force of Legislative Decree No. 1542
In accordance with the first paragraph of the Sole Transitory Complementary Provision of Legislative Decree No. 1542, the provisions of the last paragraph of article 23 of Law No. 28008 are also applicable to adjudicate, destroy or deliver to the competent sector, in advance , the merchandise and instruments seized before the entry into force of Legislative Decree No. 1542, even if previously the judge or prosecutor who heard the case denied their disposition or did not rule on the matter.
Third.- Substitution of sanctions of temporary vehicle internment and establishment closure imposed before the entry into force of Legislative Decree No. 1542
The substitution of the sanctions of temporary internment of the vehicle and closure of the establishment by a fine provided for in the third paragraph of article 35 of the Law and in articles 22-A and 23-A of its regulations is also applicable to offenses committed before of the entry into force of the aforementioned articles, at the request of the offenders.
Source: The Peruvian
