Attention, importers and exporters! Colombia has a new customs regime
Last June 9, the new customs regime came into force through DIAN Decree 920 of 2023, “whereby the new regime of penalties and seizure of goods in customs matters is established, as well as the applicable procedure”.
This decree seeks to reduce customs penalties, make the risk profile of customs agencies visible and provide greater guarantees to customs users.
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Although the measure does not modify the structure of the obligation-penalty of Decree 1165 and previous decrees, it has provoked mixed reactions among customs users.
The issuance of the new customs regime was the result of the Constitutional Court’s demand to the Government for the Congress to create this regime, as this is the corporation with the power to do so. Here are the main changes and opinions of the new customs legislation.
What changes does the new customs regime bring?
The Decree has 157 pages and 155 articles, distributed in 5 chapters. In the socialization of the Decree, the DIAN explained that the new customs regime aims to expand the procedural guarantees for customs users and to protect goods coming from foreign trade.
According to the entity, a central committee will be created to ensure the correct application of the regulation in seizure processes and international audits will be carried out. All this is aimed at preventing the misuse of foreign trade for illicit activities and promoting a favorable environment for reliable users.
The new customs regime also introduces safeguards in seizure procedures. For example, it prohibits double penalties for the same infraction or repeated seizures for the same act, with the aim of ensuring that procedures are carried out in accordance with pre-existing rules and the forms specific to each administrative procedure.
Among the main changes of the new regime are the following:
- Increased terms for issuing administrative acts: The terms for issuing administrative acts imposing sanctions and deciding on appeals for reconsideration are extended.
- Per Saltum Administrative Jurisdiction: It is allowed to go directly to the administrative jurisdiction without having to file an appeal for reconsideration. For this purpose, certain requirements must be complied with, such as properly meeting the special customs requirement or properly filing the objection to the seizure.
- Appeals for reconsideration: These appeals may be filed through the Electronic Appeals System or physically. In addition, the obligation to notify administrative acts to customs users is established, allowing the application of the positive administrative silence.
- Suspension of terms: The National Tax and Customs Directorate (DIAN) has the power to suspend up to one month the term to issue the administrative act imposing a sanction.
- Abbreviated procedure: An abbreviated procedure is established for minor infractions.
- Types of infringements and types of penalties: The distinction between minor, serious and very serious misdemeanors is maintained, but additional sanctions are included depending on the category of the obligation breached. So far, the definition of these categories has yet to be established.
- Minimum sanction: It is established that no penalty, including those reduced by search and seizure, may be less than 10 UVT (Tax Value Units), which in 2023 corresponds to $424,000. For certain specific offenses -simulating import or export operations; reporting or incorporating an address different from the verified one; incorporating supporting documents that do not correspond to the commercial operation-, the minimum penalty will be 12,000 UVT, which in 2023 is equivalent to $508,944,000.
- Additional penalties: New penalties are established, such as fines for industrial users who simulate foreign trade operations and fines of 100% of the FOB value of the merchandise for those who simulate export and import operations.
- Apprehension and seizure: The grounds for apprehension and seizure are reduced from 45 to 42, including grounds for formal matters. The procedure for cancellation of release is eliminated and the Apprehension Review Committee is created to unify criteria.
- Transitional regime: The new sanctioning regime entered into force on June 9, 2023. The administrative sanctioning processes will continue to be governed by the regulation in force at the time of initiating the respective terms, and the principle of favorability will be applied when applicable.
Opinions of trade union leaders on the new customs regime
Angélica Peña, director of ANDI’s Chamber of Free Trade Zone Users, told La República that she considers the new customs regime to be positive, as it reduces the incidence of sanctions and shows the DIAN’s effort to create a favorable environment with fewer administrative sanctions.
Miguel Espinosa, executive president of the Colombian Federation of Logistics Agents (FITAC), noted that the new Decree could remedy the problem of customs agency cancellations due to equity issues. He also emphasized that importers are often responsible for customs penalties and suggested that some minor errors should be considered warnings rather than minor penalties.
Exporters have also expressed their views on the new customs regime. Some have said that it is “more of the same” and that they expected simpler regulations. However, they have recognized the importance of guaranteeing rights in seizure procedures as one of the flags of the new regime.
Javier Diaz, executive president of Analdex, highlighted the need for greater jurisprudence in foreign trade and expressed his hope that the modernization schedules will be met.
Meanwhile, freight forwarding intermediaries have said that the regulation contains loopholes that add responsibilities to them that are not theirs.
In particular, they point out that the obligations of shippers and intermediaries in the postal traffic modality and express shipments, which are very different, are being mixed.
In conclusion, although there are different opinions, the new regime represents a significant change for the export and import of goods. According to AGT Abogados, “the ability of companies to operate efficiently and avoid penalties depends largely on their understanding and proper application of the rules”.
In this link you can read the DIAN Decree.
