A SPECIAL FIELD OF EXPERTISE: CUSTOMS CONSULTANCY

Remzi AKÇİN
Chairman of the Board

I-INTRODUCTION

The subject of the concept of customs, which has existed since the formation of states, is that countries get a share from the trade that merchants bring into the country or carry out using the country's sovereign areas. From this perspective, to talk about customs procedures, there must be a trade in goods; during this trade, the goods must be imported, exported, or transported within the country, and the public authority must control this trade and collect taxes from this trade when necessary. Again, the basis of customs procedures is the necessity of creating protected areas for the entry and exit of goods into the country, carrying out customs procedures, and storing the goods. No one is allowed to enter these sanitized, protected areas except those involved in the goods trade. These areas, defined as customs areas in our country's practice, are areas built for customs inspection, where goods and people whose entrances and exits are controlled by the customs guard and who have not passed customs inspection are located.

On the other hand, the quality of customs procedures has increased over time. While customs was only about collecting taxes, it has undertaken many functions, from protecting domestic production to preventing the import of goods harmful to the environment and human health, from preventing smuggling to ensuring country security. Over time, due to the diversification of customs transactions, the evolution of the execution of these transactions into a point of expertise, and the growth in the volume of trade, it has become necessary to carry out customs transactions through a representative instead of the owner of the goods.

II- REPRESENTATION

Some people must be authorized to carry out customs procedures (registration of customs declaration, sampling of goods, inspection of goods, etc.), and the system must define these authorized persons. This authorization, the introduction of authorized persons into the system, and the execution of customs procedures by these persons are called business tracking at customs. Natural persons can carry out customs procedures themselves or through representatives. Due to customs procedures requiring expertise and the severe consequences of a mistake, business follow-up at customs is often carried out through a representative. When the representative acts on someone else's behalf, it is called direct representation. In direct representation, the provisions and consequences of the legal transaction carried out by the authorized representative belong directly to the represented party from the moment the transaction is made. Therefore, direct representation is made through the person who is a partner or employee within the legal entity. In direct representation, the represented party is responsible for taxes and administrative fines. Indirect representation is when the representative acts on his own but on someone else's account. Therefore, the representative is not within the body of the represented person but is the person authorized by power of attorney. For this reason, customs consultants cannot make declarations on behalf of property owners unless they have a power of attorney. Direct representation is provided by the person himself or the executive body of the legal entity or its authorized employee.

For this reason, the representative is fully responsible for the consequences of the transaction. In indirect representation, no employment contract exists between the representative and the represented. The legislator has limited the people who can represent indirectly and accredited a professional group to ensure that the transaction is qualified. If the business follow-up at customs is carried out through direct representation, there is no restriction on who can represent. Anyone can be a direct representative, but only customs consultants can be an indirect representative. Customs consultants can work within a company and pursue business as direct representatives. However, a consultant who is a direct representative cannot also act as an indirect representative.

III- WHY IS THERE A NEED FOR CUSTOMS CONSULTANCY?

Subjecting the goods to a customs-approved transaction or use requires technical knowledge as well as knowledge of customs legislation and legislation in many different fields, such as foreign trade, tax, and anti-smuggling. For example, To determine the taxes for the goods to be imported, the customs tariff statistical position (G.T.I.P.) of the goods must first be known. Making this determination requires having technical knowledge about the item. Even to determine the customs duty of the goods, it is necessary to decide on the correct tariff and column in the proper list annexed to the Import Regime Decision.

Depending on its nature, taxes such as customs duty, additional customs duty, value added tax, special consumption tax, anti-dumping tax, additional financial liability, resource use support fund, etc. must be known and calculated even for the import of just one item of goods. In this respect, professionals working as indirect representatives in the customs administration are expected to have certain professional knowledge and professional ethics.

Customs consultants have undertaken the same mission that independent accountants, financial advisors and certified public accountants undertake in achieving financial discipline and the success of tax applications, in carrying out foreign trade transactions in accordance with the legislation and in correctly collecting foreign trade-related taxes. The general approach and knowledge of customs consultants, who act as a bridge between companies and customs by providing consultancy services to companies operating in the field of foreign trade and ensuring that transactions are carried out in accordance with the legislation at customs, directly affect the success of customs and foreign trade policies.

Consultants are authorized to pursue business exclusively in the customs administrations as indirect representatives. Pursuant to the Customs Law, the customs consultant who serves as an indirect representative acts on his own behalf but on someone else's account. For this reason, customs consultants sign customs declarations as the declarant and, in this capacity, access the customs data system and enter data.

Without prejudice to special provisions, business follow-up at customs is essentially carried out by customs consultants with a professional service approach. It is essential for people who have gained this title to act in a disciplined manner, along with the necessary knowledge of the legislation, in order to carry out customs work quickly and without any disruptions, and to establish transactions without causing harm to business owners. Therefore, when entering the profession and after the training period, knowledge of the necessary legislation is required, and experience is required if employees at the customs want to work with this title.

Considering that the one who determines the application should be knowledge of the legislation, if customs consultants carry out their transactions in accordance with the legislation and inform and guide the people they represent on this issue, customs affairs will be carried out quickly and business owners will choose the transaction that provides the maximum benefit. Otherwise, work may be delayed, which may result in additional costs.

IV- HOW TO BECOME A CUSTOMS CONSULTANT?

Customs consultants are professionals with professional competence who meet the conditions specified in the Customs Law, such as education, internship, not being punished for certain crimes and being successful in the professional qualification exam, and who are qualified to carry out customs transactions within the framework of the authorities they receive from the law.

In order for customs consultants to perform their profession efficiently, they must have the necessary knowledge of the legislation and the required conditions in terms of education and discipline. To ensure this, first of all, the conditions are not to be deprived of public rights, not to be dismissed from civil service as a result of criminal or disciplinary investigation, or not to be convicted of specified crimes.

Additionally, to become a customs consultant; Graduating from the faculties and schools listed in the Customs Law; After working for at least one year with a customs consultant for internship purposes and becoming an assistant customs consultant as a result of the exam, it is necessary to work in this profession for at least two years and be successful in the customs consultant exam.

The customs consultancy exam is held in two stages: pre-selection and professional qualification. The pre-selection exam is conducted by the Council of Higher Education Student Selection and Placement Center or other official institutions that conduct the exam. The preparation, implementation and evaluation of the tests are carried out by the institutions performing the tests within the framework of the protocol to be made with the Ministry of Commerce. Candidates who pass the customs consultancy preliminary examination are subjected to an oral exam to measure professional competence.

Customs consultant and assistant customs consultant exams are held once a year. Those who have met the conditions as of the beginning of the year when the exam is opened can apply for the customs consultancy exam opened that year. Candidates can take the exams maximum three times.

V- QUALITY OF CUSTOMS CONSULTANCY PROFESSION

Customs consultancy is a profession that operates as a freelance profession, just like lawyers.

Self-employment activity is the performance of non-commercial work in one's name and on one's account, under personal responsibility, without depending on the employer, and which is based on individual work, scientific or professional knowledge, or expertise rather than capital.

If he is a freelancer; Performing freelance activities in his/her own name and on his/her own account, as a regular profession; lawyer, doctor, dentist, veterinarian, architect, engineer, consultant, independent accountant, certified public accountant, consultant, painter, writer, composer, chemist, notary, teacher, artist, manager, screenwriter, director, midwife, circumciser petitioner, guide and health officer etc. are people.

However, today's complex legislative structure, diversity of transactions, the abundance and variety of information and documents required in customs transactions, and the necessity of technical infrastructure for error-free execution of transactions make it necessary for customs consultancy to operate as a private law legal entity. According to the Customs Law, If the customs consultancy is carried out by establishing a private law legal entity, assistant customs consultants may also become partners in the legal entities established by the customs consultants. However, customs consultants and assistant customs consultants can only be partners in one legal entity.

VI- FINANCIAL RESPONSIBILITY OF THE CUSTOMS CONSULTANT

Customs consultancy is one of the professional groups with weighty responsibilities. Customs consultants are responsible for the missing tax in case of underpayment of tax and the fine resulting from this tax loss due to their work. On the other hand, due to the "participation" provisions of the Misdemeanor Law, the same fine imposed on the liable person may be applied to the customs consultant. More importantly, there is always the possibility that the customs consultant will be tried for smuggling just because of the declaration he prepared.

The responsibility of the customs consultant is not limited to this. He may also face disciplinary action for his actions. His authority to do his job may be temporarily or permanently taken away.

1- RESPONSIBILITY FOR UNDERPAID TAXES

Essentially, the taxpayer, the owner of the goods, is responsible for underpaid customs duties. Naturally, the responsibility should be this way since the person who benefits from the import of the goods is the importer, not the customs consultant. However, if the underpaid tax is caused by a situation contrary to the legislation (for example, the taxable nature of the goods is incorrectly declared or its value is declared lower than the actual payment), the customs consultant who knows and usually should have known about this situation is also responsible for the taxes. In this regard, the Customs Law, The liability of the customs consultant, as an indirect representative, is limited to cases where he knows that the data used in the declaration is incorrect or is required to understand it as a matter of professional and customary.

It is possible to permit relevant and authorized persons to examine or take samples of the goods submitted to customs before they are subjected to a customs-approved process or use. By this provision, the customs consultant always has the right to examine the goods and take samples from the goods to determine the tariff of the goods for which he will carry out customs procedures and to prepare the content of the declaration to be prepared accurately. Therefore, the consultant's authority is considered when drawing the framework of the consultant's responsibility. In other words, correctly determining the tariff of the goods is regarded as an issue that the customs consultant should know due to his profession. However, it should be noted that this situation is used in practice due to hesitation in determining the tariff of the goods and that resorting to such a method in every transaction will lock the customs procedures.

The main task of determining the tariff of the goods in the customs declaration falls on the customs consultant. The customs consultant knows the tariff, customs legislation, and the consequences of misdeclaration of the tariff better than the owner of the goods. However, if the description and nature of the goods that are the basis for tariff determination are reported incorrectly or incompletely, claiming that the customs consultant is wrong means an injustice has been done to the professional.

In cases where more than one taxpayer is responsible for the payment of the same customs duties, these persons are held jointly and severally responsible for paying the taxes, in order to prevent the collection of customs duties from being delayed and at the same time to guarantee the treasury receivables. Therefore, it is possible to request all taxes from each of these people. If taxes are collected from any of them, the liability of the others is eliminated.

Joint liability is the situation in which the liability of all responsible parties continues until the tax is paid in full. The fact that one or more of the responsible persons pay some of the taxes does not eliminate the tax liability for those persons. When the full tax is paid, the liability of all those liable for this tax ends.

Joint and joint liability means that all responsible parties are simultaneously liable for the tax. In joint and several liability, there is a ranking among the obliged parties; It is not possible to apply to the secondary responsible or responsible persons without applying to the main obligor. The entire remaining portion of the tax receivable can be collected from any of the obliged parties. Tax receivables that cannot be collected from one obligor can be collected from another in line until the entire public receivable is paid.

In cases where the customs consultancy is carried out as a legal entity, the partners are jointly and severally liable together with the company in cases where the person signing the declaration knew and should have known about the situation that caused tax loss.

The main tax liability is the owner of the goods, that is, the importer. The liability of the customs consultant begins if the tax cannot be collected from the main debtor. For this reason, it is not a correct practice to notify both the taxpayer and the customs consultant of the same tax receivable on the same date.

2- RESPONSIBILITY FOR FINE PENALTY

Although the person responsible for customs fines may be the warehouse operator, transporter, ship captain, ship or aircraft agent, depending on the situation, it is generally the declarant who makes the regime declaration. The person who has the authority to dispose of the goods subject to the declaration is also responsible for the fine.

The penalties that the customs consultant will face are generally related to the customs declaration he signed. In customs regimes; Since the penalty is imposed on the declarant, the customs consultant should not be penalized under normal circumstances. However, if the customs consultant is involved in a punishable act, the same penalty will be imposed on the customs consultant. Because, in accordance with the Misdemeanor Law; "If more than one person participates in the commission of the misdemeanor, an administrative fine is imposed on each of these people as the perpetrator..."

The element of intent is not required in the application of fines specified in the Customs Law. For example; If there is a punishable action in the customs declaration, it is not investigated whether the declarant committed this criminal offense knowingly or made this declaration unknowingly. The fact that a criminal situation has occurred is sufficient reason for a criminal decision to be issued.

However, the Misdemeanor Law regulation regarding participation; “For participation in a crime, the existence of a deliberate and unlawful act is sufficient. An administrative fine is imposed on the person who participated in the commission of the crime, regardless of whether others are responsible or not.” It is in the form. In order to impose a penalty due to participation, the element of intent of the participant must be demonstrated, unlike the declarant. As it is known, the criterion for the existence of intent is whether the perpetrator commits the action requiring punishment with his own will, that is, he knows it, or the person should normally know this situation due to the position he assumes.

On the other hand, in accordance with the Misdemeanor Law, the penalty decision must be justified. If a penalty is imposed due to participation in a crime, the reasons for the participation and why the perpetrator knew or should have known this must be included in the penalty decision. Issuing the same penalty decision issued to the declarant to the customs consultant due to participation is a procedure contrary to the Misdemeanor Law.

In addition, it is regulated by the Customs Regulation that the persons who sign the declaration are responsible for the accuracy of the information specified in the declaration and the documents attached to the declaration and for compliance with all obligations required by the relevant regime in terms of the implementation of the penal provisions, and in the case of direct representation, this responsibility belongs to those acting on behalf of them.

These regulations clearly emphasize the general criminal liability of customs consultants. Therefore, it is understood that in case of indirect representation, customs consultants will be responsible for the criminal liability arising from the declaration, along with those on whose behalf the declaration is made.

As can be understood from these explanations, in accordance with the Misdemeanor Law, if the conditions are met, the fines in the Customs Law can also be applied to the customs consultant.

3- RESPONSIBILITY OF CUSTOMS CONSULTANCY COMPANIES

Under the Customs Law, if a customs consultancy is a legal entity, those who signed the customs declaration or other documents, and were aware or should have been aware of the situation that led to the tax loss, will be jointly and severally liable with the affiliated legal entity to the customs administration. This means that both the individual and the company are responsible for the taxes and fines imposed by the customs administration.

It's important to note that the customs consultant and the customs consultancy company share a financial responsibility in terms of the collection of public receivables. This underscores the collective obligation and the need for mutual accountability.

4- JUDICIAL AND ADMINISTRATIVE CRIMINAL RESPONSIBILITY

According to the Customs Law, customs consultants, and assistant customs consultants are punished by the provisions of the Turkish Penal Code for civil servants, depending on the nature of their acts, for the crimes they commit during or because of their duties.

Disciplinary penalties are imposed in accordance with the Customs Law to ensure that customs consultancy services are carried out in a reliable and qualified manner. These penalties apply to faulty, erroneous behavior or negligence of customs consultants that occur during the execution of their profession.

For acts and actions that undermine the dignity and honor of the customs consultancy profession, failure to perform duties, or performing duties defectively, disciplinary penalties are issued. These can range from a warning or reprimand to temporary suspension from professional activity or even dismissal from the profession. The severity of the penalty is determined by the nature and severity of the situation.

Warning and reprimand penalties are given by the customs and foreign trade regional director, temporary suspension from professional activity is provided by the Central Disciplinary Board of the Ministry of Commerce, and the Ministry's High Disciplinary Board gives dismissal from profession. The boards determine disciplinary penalties by considering customs consultants' duties, powers, and responsibilities, as well as the provisions of the law regulating disciplinary penalties.

As a result, the customs consultant, an indispensable chain in preparing customs documents for the execution of customs transactions and the import and export of goods, also paves the way for foreign traders by using his knowledge in the sector he serves.