Scope of the liability of the customs agent in the indirect representation
Decision 421/2016 issued by the Court of Justice of Madrid (Spain) last April 15, 2016, in response to an appeal submitted.
This decision analyses the case in which a customs agent (appellant) lent services of indirect representation, acting in its own name but on behalf of the importer (client). Once the customs debt was non-paid, the Spanish Tax Authorities issued the corresponding settlement documents addressed to the importer, but not to the representative (customs agent). Due to the non-payment of the debt, the Spanish Tax Authorities required to the customs agent the payment of the customs debt derived of the import made by his client.
The appellant (customs agent), although recognizes that the indirect representation in both the importer (client) and the declarant (customs agent) are obliged to pay solidarity way, alleges that previously, within the voluntary period of payment, he was not notified about the debt claimed nor the derivation of liability agreement has been entered.
At this point, the judgment clarifies that this is a solidarity obligation, that it should not be confused with the joint and several liability which regulates the Spanish General Tax Law, and co-ownership in taxable event brings a global solidarity obligation, not a solidarity referred exclusively to the payment of the debt, which is that provided for in the event of solidarity liability of the Spanish General Tax Law, not requiring the Declaration of joint and several liability to customs agent.
The solidarity above mentioned should be extended to the checking activities carried out by the Spanish Tax Authorities that in its case can be carried out with each one of them forced solidarity (the customs agent or the client).
Once established the solidarity in the customs debt between the importer and the customs agent that worked in its own name but on behalf of the importer (indirect representation), and being proved that the settlement documents were duly notified to the importer, the court concludes that the performances of checking and investigation of the customs debt carried out over one of the solidary obligors are fully valid and its effects reach the other passive or debtor subject to the customs, being therefore possible demand to customs agent, solidary obligor, the customs debt derived for the import of goods carried out by the other solidary obligor.
For this reason, the Court dismissed the appellation requested by the customs agent.
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