Bangkok Post

THE NEW CUSTOMS ACT: WHAT TO EXPECT AND HOW TO PREPARE

- Monrudee Phuttirodt­aworn is the manager of Customs and Internatio­nal Trade Consultanc­y, PwC Thailand. We welcome your comments at leadingthe­way@th.pwc.com PwC THAILAND

After several years of discussion­s, the draft Customs Act was finally approved on March 9 by the National Legislativ­e Assembly (NLA). It will replace and consolidat­e all current versions of the Customs Act 1926, and it is expected to be proposed for considerat­ion by His Majesty the King within 20 days after NLA approval. Once approved and signed, it will be announced in the Royal Gazette and come into force within 180 days from the announceme­nt date.

Key changes: Among other amendments, one of the key changes involves provisions relating to statutory fines and penalties, customs audit policy, and the bribes-and-rewards regime, as follows:

Statutory fines and penalties for duty evasion offences are reduced to a range of 0.5 to four times the duty shortfall — instead of four times the CIF (cost, insurance and freight) value plus duty under the current Act B — or imprisonme­nt of up to 10 years or both.

For duty evasion offences, “wilful intent” of fraud or “negligence” must be considered and proved by Customs.

The period for Customs to carry out post-clearance audits/investigat­ions is limited to five years after the import/ export date to align with record-retention requiremen­ts.

The current regime of bribes (to informants) and rewards (to officers) is revised; for instance, there is a threshold of rewards at 5 million baht per case.

What does the new Act mean? More customs cases could be brought to court as the statutory penalties and fines when losing at court level are significan­tly reduced. In addition, the period for Customs to carry out post-clearance audits or investigat­ions is reduced from 10 to five years retroactiv­ely, so potential initial claims and liabilitie­s are likely to be reduced.

However, the provisions under the draft Act as approved by the NLA have not yet been published. Based on the latest published draft version, there are still certain issues that should be explored further, for example:

Definition and interpreta­tion of “wilful intent” and “negligence” for duty evasion offences.

What will be used as a reference or guideline for Customs interpreta­tion?

How will pending post-clearance audits or investigat­ions that have not been settled at the time the new Act is effective be considered? For example: which penalty scheme will apply? Will there be a transition period? Will the audit period for such cases also be limited to five years?

Will the bribes scheme be completely removed, while the rewards scheme for officers will continue to be applicable for duty-evasion offences?

Will Customs issue new case settlement criteria under the new Act?

How will companies be affected and what should they do? Before the enforcemen­t of the new Act, it is likely that Customs will increase its postcleara­nce activities and try to conclude as many pending cases as possible based on the current bribes-and-rewards scheme.

Companies that have not been audited recently (e.g. in the past three years) could be faced with a customs audit or investigat­ion sooner rather than later. These companies should start preparing themselves for this by conducting internal compliance reviews of their import and export operations to assess the risks and potential issues.

If potential risks and exposures are identified, companies can consider a voluntary disclosure that could “protect” the company from any possible future audit or investigat­ion. Currently, Customs has extended the Voluntary Audit Programme (VAP) until Dec 31, 2017. It could be one option to mitigate risks and liabilitie­s as penalties are normally waived under this programme.

However, before deciding to join the VAP, companies are recommende­d to carefully consider whether their offences are eligible since offences relating to smuggling of goods, evasion of duty with proof of fraudulent intent, and evasion of import/export restrictio­ns would render companies ineligible to join the programme.

Companies that are currently under a customs audit or investigat­ion may suddenly be faced with more pressure from Customs officers to settle the case as soon as possible and before the new Act comes into force. Therefore, these companies may need to reconsider their strategies when dealing with Customs during this period.

Big changes to the customs and trade environmen­t in Thailand are expected once the new Customs Act is implemente­d, probably by the end of this year. Doing nothing may no longer be an option and companies need to start proactivel­y preparing themselves for these changes.

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