DECLARATION IN ITS PROVISIONAL FORM
By: Atty. Mark Anthony Tamayo on May 14,2020
One significant trade facilitation measure in customs clearance procedure and formalities was the adoption of the Revised Kyoto Convention (RKC) provisions relating to provisional or incomplete goods declaration (PGD) in the Customs Modernization and Tariff Act (CMTA).
To implement these provisions, the Bureau of Customs (BoC) recently issued Customs Memorandum Order (CMO) 07-2020 (effective March 16, 2020). It provides the interim procedures relating to Section 403 (PGD) and Section 426 (Tentative Assessment of PGD) of the CMTA.
A PGD is a special type of declaration that may be lodged by importers in situations where the additional information and/or collateral documents required to complete a goods declaration (commonly known as entry declaration) are not available at the time of importation
As a condition, an importer needs to provide the necessary information or submit supporting documents within 45 days — which can be extended for another 45 — from the lodging of the PGD. The exact period within which to submit these requirements shall be decided by the district or subport collector.
Lodging the PGD may be allowed in these instances:
– When no regulatory permit, clearance or license has been presented at the time of lodgment and that the importer has filed the required application prior to the departure of the goods from the country of origin.
When permits are allowed to be secured from a regulatory agency, even after the arrival of the shipment.
– The period to submit the same shall be in accordance with the requirement of the regulatory agency.
– When a tax exemption endorsement (from the Department of Finance) or a tax-exempt certificate or authority to release imported goods (from the Bureau of Internal Revenue) is yet to be issued. The application must have, however, been filed at the time of lodgment.
– Relief consignments entered into during a national or local state of calamity (Joint Administrative Order 1-2020 and Office of the Commissioner [OCOM] Memo 53-2020, dated March 17, 2020).
– Any other situations not due to the declarant’s negligence or fault.
Although the lacking documents and/or information may be subsequently submitted, the CMO strictly requires the presence of certain mandatory documents at the time of importation. These documents are the bill of lading, commercial invoice, packing list, PGD documentary requirements, regulatory applications filed, advance copy of a Certificate of Origin (if applicable), and affidavit of undertaking to submit lacking documents.
Under the CMO, the declarant must file hard copies of the mandatory documents with the BoC entry processing unit or its equivalent office within 48 hours from lodging the PGD.
If there is a request for the tentative release of the goods, the BoC district or subport collector may approve the tentative assessment of duties, taxes and other charges, subject to final readjustment once the additional information or supporting documents have been provided.
The imported goods may then be released upon posting of a security (i.e., surety or cash bond) equivalent to the difference between the declared duties, taxes and other charges and the assessment in case of failure to submit the required documents on time. No bond shall be required for relief consignments.
PGD and the advent of online filing
In line with the BoC’s mandate to facilitate trade (and optimize revenue), OCOM Memo 61-2020, dated March 24, 2020, was also issued to provide an interim implementation of the “Online Filing of Goods Declaration” during the enhanced community quarantine (ECQ).
Online filing of goods declaration is basically the BoC’s temporary acceptance of the electronic copy of a declaration and its supporting documents, subject to the submission of their original copy. It may be availed of (as an option) by BoC-accredited importers, customs brokers and declarants through the bureau’s Customer Care Portal System (CCPS), an online facility with support ticketing system.
If the declarant is not capable of submitting the original copy of the supporting documents uploaded in the CCPS (particularly during the ECQ), the online filing system requires the lodgment of a PGD.
Per BoC Memo dated April 17, 2020 (Supplemental Guidelines for Online Filing of Goods Declaration), the original copy uploaded should be submitted to Customs upon the lifting of the ECQ or within three days thereafter. To effectively implement this, the online filing system requires, in the interim, the attachment of a scanned copy of a letter of commitment and undertaking, the notarized copy of which must also be submitted to the BoC.
Failure to comply may result in the suspension of the importer’s (or broker’s) accreditation and his being barred from transacting with the BoC.
Note that goods declarations are akin to tax returns in the sense that they both declare, under penalties of perjury, the details of particulars giving rise to the declarants’ liability to the government. Thus, all uploaded files, when printed and certified as faithful reproductions of the electronic submissions, are considered actionable documents under Sec. 412 of the CMTA in relation to Republic Act 8792, or the “E-Commerce Act of 2000,” for purposes of prosecuting a declarant or importer if the uploaded files are subsequently found to be fraudulent.
The relevance and usefulness of a PGD in trade cannot be countered, particularly in health emergency situations and crisis, and other challenging times. It serves to facilitate trade by ensuring the continuous and unhampered release of goods from the BoC.
While a PGD may initially address situations involving incomplete declarations, the availment has a serious concomitant obligation on the part of the declarant to comply strictly with the terms of the undertaking. Thus, responsible importers (or their customs brokers) should not consider this practice as a default remedy, but more as a back-up solution under extraordinary situations.It may be worthy to highlight that all PGD lodgments are subject to close monitoring by the BoC and may be subject to post clearance audit in the future.
Mark Anthony Tamayo is a CPA-lawyer and partner of Mata-Perez, Tamayo & Francisco (MTF) Counsel. His areas of expertise include tax, customs and trade advisory, planning, controversy and litigation; corporate organization, reorganization and restructuring; investments and incentives.