Калининградская областная таможня

Chapter 51. Federal law of 03.08.2018 № 289-ФЗ

"On customs regulation in the Russian Federation and on amendments to certain legislative acts of the Russian Federation"

APPEAL AGAINST DECISIONS, ACTIONS (INACTION)

OF CUSTOMS AUTHORITIES AND THEIR OFFICIALS

Article 285. General provisions

1. Any person has the right to appeal the decision, the action (inaction) of the customs authority and its official, if such a decision, action (inaction), in the opinion of this person, violated the person's rights, freedoms or legitimate interests, created obstacles to their implementation or illegally entrusted to him/her any duty.
2. The refusal of a person from the right to appeal the decision, action (inaction) of the customs authority or its official is invalid.

Article 286. Appeal of the decision, action (inaction)

1.The decision, action (inaction) of the customs authorities and their officials may be appealed to the customs authorities and (or) to the court.

2. A complaint against a decision made by the federal executive body that performs the functions of control and supervision in the field of customs, as well as against the committed action (inaction) is submitted to the court.

3.The procedure for filing and consideration of complaints is determined by this chapter, with the exception of cases of appealing of a decision, action (inaction) of the customs authorities and their officials, in respect of which federal laws establish a special procedure of appeal.

4. The appeal of decisions, actions (inactions) of the customs authority in a judicial procedure is regulated by the relevant procedural legislation of the Russian Federation.
5. Federal executive body that performs the functions of control and supervision in the field of customs determines the procedure for the actions of customs officials when considering complaints.

Article 287. Applicants

Applicants who file a complaint may be::

1) legal entities, as well as organizations that are not legal entities that appeal of the decision, action (inaction) of the customs authority through their bodies, acting within the powers granted to them by federal laws, other regulatory legal acts, constituent documents of a legal entity or organization that is not legal entity, or through their representatives;

2) individuals who appeal of the decision, action (inaction) of the customs authority or officials personally or through an authorized representative.

Article 288. Complaints procedure

1. The complaint is filed with the superior customs authority through the customs authority, the decision, action (inaction) of which is appealed of. The complaint against the decision, action (inaction) of the customs post is submitted to the customs.
2. The customs authority, the decision, the action (inaction) of which is appealed of, sends the complaint with the opinion and documents necessary for making a decision to the higher customs authority no later than five working days after its receipt by the customs authority, the decision, action (inaction) of which is being appealed.

Article 289. Deadlines for Filing a Complaint

1. A complaint may be filed within three months:

1) from the day when a person became aware or should have become aware of a violation of his/hers rights, freedoms or legitimate interests, the creation of obstacles to their realization or the illegal imposition of any obligation on him/her;

2) from the date of the expiration of the time limit for the customs authority to take a decision or perform an action established by international treaties and acts in the field of customs regulation, the legislation of the Russian Federation on customs regulation.

2. In case of missing a deadline for appealing against an action (inaction), the specified deadline may be reinstated at the request of the applicant, if the customs authority recognizes the reason for such a pass as valid.
3. A petition for the deadline to be reinstated provided for in part 1 of this article shall be submitted in writing as an independent document at the same time as the complaint or may be contained in the text of the complaint. With such a petition, documents are submitted confirming the reasons for missing the deadline for the appeal. With such a request, documents confirming the reasons for missing the deadline for the appeal are provided.
4. The restoration of the missed deadline for appeal is expressed in the actual acceptance by the customs authority for consideration on the merits of the complaint of the applicant.

Article 290. Form and content of the complaint

1. The complaint shall be submitted to the customs authority in writing and shall be signed by the applicant or his representative.
2. A complaint may be filed electronically in accordance with the provisions of Article 300 and part 11 of Article 398 of the Federal Law.

3.The complaint shall contain:

1) the name of the customs authority, the decision, action (inaction) of which are being appealed;

2) the surname, name, patronymic (if any), place of residence of the individual or the name of the legal entity filing the complaint, taxpayer identification number, their location;

3) the merits of the  decision, action (inaction) being appealed;

4) the grounds on which the person filing the complaint believes that his rights have been violated.

Article 291. Documents attached to the complaint

1.In the event of a complaint being filed by a complainant’s representative, the complaint shall be accompanied by originals or duly certified copies of the documents, where in the field of customs there should be directly stated the representative’s right to appeal against decisions, actions (inactions).

2. The applicant may attach to the complaint the documents confirming the circumstances and arguments set forth in the complaint.
3. If documents and information that are essential for the consideration of the complaint are not available at the customs authority, the decision, the action (inaction) of which is appealed against, the customs authority examining the complaint has the right to request them from the applicant.
4. In the case of a request to the applicant provided for in part 3 of this article, the period for consideration of the complaint is suspended until the documents and information requested by the customs authority are submitted, but no more than three months after the day the request was sent. If the person has not submitted the documents and information requested by the customs authority in accordance with part 3 of this article, the decision on the said complaint shall be made without taking into account the arguments which the documents and information were not submitted. If the person has not submitted the documents and information requested by the customs authority in accordance with part 3 of this article, the decision on the said complaint shall be made without taking into account the arguments for which the confirming documents and information were not submitted.

5.The request is sent by registered mail.

Article 292. Consequences of the complaint

1. Filing of a complaint does not suspend the execution of the customs body decision being appealed against or the performing by the customs body of  the action being appealed against, except in the case provided for in part 2 of this article.
2. The customs authority, the decision, the action (inaction) of which is being appealed against, shall at the written request of the applicant decide to suspend the execution of the contested decision, aimed at collecting customs payments to be paid in connection with its adoption, subject to the provision by the applicant of the obligation to pay customs duties, taxes, customs dues, special, anti-dumping, countervailing duties in the form of a cash pledge or a bank guarantee in the amount not less than the amount of customs payments to be paid in connection with the adoption of the decision being appealed against.
3. In the event that the applicant is a person carrying out activities in the field of customs, or an authorized economic operator, at the request of these persons a security for the suspension of the execution of the decision being appealed against there may used a  security of the performance of duties of a legal entity carrying out activities in the field of customs, security of the  performance of duties of an authorized economic operator, provided that the amount of customs duties, taxes payable, customs dues, special, anti-dumping, countervailing duties in connection with the adoption of the  decision being appealed against, does not exceed the amount of security for the performance of duties of a legal entity operating in the field of customs, the size of security for the performance of duties of an authorized economic operator.

4The applicant shall attach to the petition for suspension of execution of the appealed decision of customs authority the Bank guarantee in the form of the document on paper or to specify in the petition the data on the Bank guarantee in the form of the electronic document signed by the strengthened qualified electronic signature and in case of introduction of the monetary pledge to submit the application for offset of the money paid as advance payments to the monetary pledge according to part 3 of article 35 of the Federal law.The bank guarantee specified in Part 2 of this Article is subject to the requirements established by Parts 3–9, 11, 15 of Article 61 of the Federal Law, taking into account the features established by this Article,  in compliance with the following conditions:

1) the bank guarantee shall enter into force on the day of its submission to the customs authority;

2) the term of the bank guarantee shall expire no earlier than seven months from the date of the petition by the applicant to suspend the execution of the decision being appealed against;

3) the amount for which the bank guarantee was issued shall ensure the performance of the duty of the payer of customs duties and taxes, and in cases provided for by the EAEU TC and Federal Law, of another person (principal) in the payment of customs duties, taxes, customs dues, special, anti-dumping, compensation duties in the amount of not less than the sum of customs payments payable in connection with the adoption of the contested decision.

5. The customs authority, whose decision, action (inaction) is being appealed against, shall within seven working days after the day of receipt of the application for the suspension of the execution of the decision being appealed against, take one of the following decisions:

1) to suspend the execution of the  decision being appealed against of the customs authority;

2) to refuse to suspend the execution of the decision being appealed against of the customs authority.

6. The grounds for the decision to refuse to suspend the execution of the decision being appealed of the customs authority are:

1) non-compliance of the Bank guarantee provided by the applicant to the requirements established by this article and (or) parts 3-9, 15 of article 61 of the Federal law;

2) refusal of the customs authority considering the complaint to accept the Bank guarantee on the bases specified in parts 18 and 19 of article 61 of the Federal law.

7. The copy of the decision made by results of consideration of the petition for suspension of execution of the customs authority decision being appealed against goes to the applicant and to the customs authority considering the complaint within three days.
8. The decision to suspend the execution of the customs authority decision being appealed against is valid until the day of the decision on the complaint or withdrawal of the complaint by the higher customs authority.
9. Foreclosure on ensuring execution of the obligation on payment of customs duties, taxes, customs dues, special, anti-dumping, compensation duties, duties of the legal entity performing activity in the field of customs, duties of the authorized economic operator is performed in the order provided by article 76 of the Federal law taking into account the feature provided by part 10 of this article.
10. The customs authority sends to the guarantor that issued the Bank guarantee, the requirement about payment of the sum of money under the Bank guarantee after the terms established by part 19 of article 73 of the Federal law, but not earlier than day of adoption of the decision on the complaint or the response of the complaint by higher customs authority.
11. In case of adoption by the higher customs authority of the decision on recognition the decision, actions (inaction) which execution is provided by the monetary pledge or a Bank guarantee illegal, the customs authority makes one of the following actions:

1) shall notify the guarantor of the refusal of the customs authority of their rights under the Bank guarantee in whole or in part in the manner prescribed by the civil legislation of the Russian Federation;

2) shall return the monetary pledge in full or in part in the manner and within the terms established by article 69 of the Federal law.

12. The Federal Executive body performing functions on control and supervision in the field of customs, defines the form of the decision on suspension (on refusal in suspension) of execution of the customs authority decision being appealed against.

Article 293. Refusal to consider the complaint

1. The customs authority shall refuse to consider the merits of the complaint in whole or in part if any of the following grounds exist:

1) there is a decision made in accordance with article 298 of the Federal law by the same customs authority or higher customs authority on the same subject of the complaint;

2) the terms of the appeal established by part 1 of article 289 of the Federal law are not observed, and the applicant did not submit the petition for restoration of term for the appeal or such petition is rejected by customs authority;

3) the decision, action (inaction) of the customs authority and (or) circumstances to be established by the customs authority in connection with the consideration of the complaint shall be the subject of consideration of the court;

4) the complaint is filed by a person whose rights, freedoms or legitimate interests have not been affected by the appealed decision, action (inaction) ;

5) there is no subject of appeal (the fact of the decision of the customs authority or the Commission of an action (inaction) has not been confirmed);

6) non-compliance by the applicant with the requirements to the form and content of the complaint established by parts 1 and 3 of article 290 or part 2 of article 300 of the Federal law;

7) the applicant has not submitted documents confirming the powers of the person who filed the complaint under part 1 of article 291 of the Federal law.

2. The decision on refusal in consideration of the complaint shall be made no later than five working days after the day of receipt of the complaint or the documents confirming the existence of the bases provided by part 1 of this article.
3. The decision on refusal in consideration of the complaint shall contain the circumstances which served as the basis for the refusal, and in case of submission by the applicant of the petition for restoration of the term established by part 1 of article 289 of the Federal law, also the reasons of its rejection.
4. The decision to refuse to consider the complaint is sent to the applicant no later than three working days from the date of its adoption by registered mail.
5. The specified decision can be sent to the applicant in electronic form in the order and cases which are provided by article 300 of the Federal law.
6. The decision to refuse to consider the complaint prevents the customs authority from re-filing a complaint on the same subject, except as provided for in paragraphs 6 and 7 of part 1 of this article.

Article 294. Withdrawal of the complaint

1. The applicant may withdraw the complaint at any time before a decision on the merits is taken by the customs authority considering the complaint.
2. The withdrawal of the complaint prevents the re-filing of a complaint on the same subject with the customs authority.
3. The customs authority, considering the complaint, informs the applicant and the customs authority, the decision, action (inaction) of which is being appealed against, about acceptance of the response of the complaint no later than three working days from the date of receipt of the corresponding address.

Article 295. Customs authority considering the complaint

1. The complaint is considered by the higher customs authority.
2. The decision on the complaint on behalf of the superior customs authority is made by the head of this customs authority or the official of the customs authority authorized by them.

Article 296. The consolidation of complaints and the provision of complaints

The customs authority considering the complaint has the right to combine several complaints on the interconnected decisions, actions (inaction) of customs authority for joint consideration or to allocate decisions, actions (inaction) of customs authority from the subject of the appeal for separate consideration.

Article 297. Terms of consideration of the complaint

1. The complaint must be considered by the higher customs authority within one month from the date of its receipt by the customs authority authorized to consider the complaint. The complaint submitted without observance of requirements of part 1 of article 288 of the Federal law shall be considered by higher customs authority within two months from the date of its receipt in the customs authority authorized to consider the complaint.
2. The term of consideration of the complaint specified in part 1 of this article may be extended by the head of the customs authority or an official of the customs authority, authorized by them, but not more than one month.
3. Notice of extension of the period of consideration of the complaint shall be sent to the applicant no later than three working days from the date of its acceptance by registered mail. Also the specified decision may be sent to the applicant in electronic form in the order and cases which are provided by article 300 of the Federal law.

Article 298. Decision of the customs authority on the complaint

1. The decision of the customs authority on the complaint must contain:

1) the name of the customs authority that considered the complaint;

2) the number of solutions;

3) date and place of the decision;

4) the position, surname and initials of the official of the customs authority who made the decision on the complaint, details of the document confirming its powers on consideration of the complaint (except for the chief of the customs authority);

5) surname, name, patronymic (if any) or name of the person who filed the complaint;

6) the essence of the complaint, including information about the customs authority, the decision, the action (inaction) of which are being appealed against;

7) the actual circumstances of the adoption of the decisions, actions (inaction) being appealed against  found in the course of the complaint consideration;

8) grounds and conclusions for the decision on the complaint;

9) decision taken on the complaint;

10) information about the appeal procedure adopted in the appeal decision.

2. According to the results of consideration of the complaint, the customs authority takes one of the following decisions:

1) recognizes the customs authority’s decision, action (inaction) being appealed against  as lawful  and refuses to satisfy the complaint;

2) ) recognizes the customs authority’s decision, action (inaction) being appealed against in whole or in part  as illegal and decides to satisfy the complaint in whole or in part.

3. In case of satisfaction of the complaint in whole or in part, the customs authority:

1) cancels all or part of the decision taken by the customs authority;

2) cancels the decision made by customs authority and obliges this customs authority to make the new decision according to the international treaties and acts in the field of customs regulation, the legislation of the Russian Federation on customs regulation and (or) the measures directed on elimination of the allowed violations;

3) recognizes action (inaction) of customs authority illegal and obliges to take the measures directed on elimination of the allowed violations.

4. The decision on the complaint must be signed by the official of the customs authority who made the decision.
5. Actions on implementation of the decision of customs authority on satisfaction of the complaint shall be made by customs authority, that decision, action (inaction) is recognized illegal, no later than fifteen working days after day of receipt of the decision on the specified complaint in this body if international treaties and acts in the field of customs regulation, the legislation of the Russian Federation on customs regulation or the specified decision does not establish other term for their Commission.
6. The copy of the decision made by results of consideration of the complaint is sent to the applicant by registered mail within three working days after day of decision-making. The specified decision can be sent to the applicant in the form of the electronic document in the order and cases which are provided by article 300 of the Federal law.
7. The decision of the customs authority on the complaint may be appealed to a higher customs authority and (or) court.
8. The Federal Executive body, which carries out the functions of control and supervision in the field of customs, determines the form of the decision on the complaint against the decision, the action (inaction) of the customs authority.

Article 299. Appeal against decisions related to the consideration of the complaint

Decisions of the customs authority on refusal to consider the complaint, on refusal to suspend the execution of the customs authority’s decision being appealed against the may be appealed to the court.

Article 300. Electronic complaint form

1. The complaint can be submitted to the customs authority in the form of an electronic document.

2. A complaint filed in the form of an electronic document shall be signed by an enhanced unqualified electronic signature or enhanced qualified electronic signature, if the applicant is an individual, and enhanced qualified electronic signature, if the applicant is a legal entity.

3. The documents attached to the complaint that is submitted electronically shall also be submitted to the customs authority in the form of an electronic document and certified by a legal entity or an individual by a suitably enhanced qualified electronic signature or an unqualified electronic signature.

4. At the request of the applicant decision on the complaint filed in the form of an electronic document, the decision to refuse to consider the complaint or to refuse to suspend the execution of the customs authority’s decision being appealed against, the notice of extension of the complaint may be received in the form of an electronic document.
5. The Federal Executive body, which carries out the functions of control and supervision in the field of customs, determines the procedure for filing a complaint to the customs authorities in the form of an electronic document, the procedure for the actions of customs officials when considering complaints filed in electronic form, as well as establishes the format, structure and procedure for filling in the electronic form of the following documents:

1) complaint against the decision, action (inaction) of the customs authority;

2) decision on the complaint against the decision, action (inaction) of the customs authority;

3) the decision to refuse to consider the complaint, the refusal to suspend the execution of the customs authority’s decision being appealed against, the notice of extension of the complaint.

INSTRUCTIONS

FOR INDIVIDUALS APPEALING AGAINST DECISIONS, ACTIONS (INACTION)

OF CUSTOMS AUTHORITIES AND THEIR OFFICIALS

1. FCS of Russia considers complaints against decisions, actions (inaction) of the Kaliningrad regional customs. Complaints about decisions, actions (inaction) of customs posts subordinated to the Kaliningrad regional customs are considered by the Kaliningrad regional customs.
2. A person, in whose opinion the decision, action (inaction) of the customs authority violated his/her rights, freedoms or legitimate interests, created obstacles to their implementation or illegally assigned any duties, has the right to file a complaint in person or through his representative (legal representative, lawyer or other person providing legal assistance).
3. Powers of the representative are confirmed by the power of attorney which shall be made in writing, signed by the person whose rights and legitimate interests are violated by the made decision, the made action or inaction (on behalf of legal entity the power of attorney is signed by the persons specified in point 5 of the Instruction) and contain date of its Commission. The list of actions for which a power of attorney is issued shall include the right to appeal against decisions, actions (inaction) in the field of customs to the customs authorities.

The powers of a lawyer are certified by a warrant issued by a legal advice company, with which the person against whom the decision was made or action (inaction) was committed, concluded a contract for the provision of legal services.

The powers of legal representatives may be confirmed by the following documents:

- constituent documents (Memorandum and articles of Association), the order of appointment - for legal entities;

- the passport of parents(adoptive parents), the guardianship certificate, and in its absence - the decision of body of guardianship and guardianship on appointment of this person as the Conservator or the Guardian - for natural persons .

4. The complaint shall be submitted in writing.

The complaint shall  specify:

- the name of the customs authority, the decision, action (inaction) that is being  appealed against;

- surname, name, patronymic (if any), place of residence of an individual or the name of a legal entity filing a complaint, taxpayer identification number, its location;

- the essence of the decision, action (inaction) being appealed against;

- the grounds on which the Complainant considers that his rights have been violated.

In addition, it is desirable to specify in the complaint the reasons for disagreement with the decision, action (inaction) being appealed against, the circumstances on the basis of which the person believes that his/her rights, freedoms and legitimate interests have been violated, obstacles to their implementation have been created or any obligation has been illegally imposed, the requirements of the person (to cancel the decision, to recognize the illegal action (inaction), as well as other information that the person considers necessary for the consideration of the complaint.

The complaint may be accompanied by originals or duly certified copies of documents confirming the circumstances set out in the complaint. In such a case, the complaint shall contain a list of the documents attached to it.

In the case of a complaint by the representative of the applicant, the complaint shall be accompanied by originals or duly certified copies of documents, which should be directly indicate the representative to have the right to appeal against decisions, actions (inaction) in the field of customs.

If the documents essential for consideration of the complaint are absent in customs authorities, are not attached to the complaint and are not submitted on additional request, the decision is made without taking into account the arguments in confirmation of which the documents are not submitted.

5. The complaint shall be signed by the person submitting it. The complaint filed by a legal entity shall indicate the official position of the person by whom it is signed. On behalf of the legal entity, the complaint may be signed by the Director General (Director) or by another person having the authority to sign the complaint on behalf of the legal entity.
6. The complaint can be filed within three months:

1) from the day when a person has become aware or should have become aware of a violation of his / her rights, freedoms or legitimate interests, the creation of obstacles to their realization or the illegal impression of any obligation on him/her;

2) from the date of the expiration of the time limit for the customs authority to take a decision or perform an action established by international treaties and acts in the field of customs regulation, the legislation of the Russian Federation on customs regulation.

7. In case of missed for a good reason, the deadline for filing a complaint may be restored on the written application of the person who filed the complaint, on the basis of the documents attached to the complaint, which confirm the reasons for missing the appeal period. The specified application can be contained both in the text of the complaint, and be submitted in the form of an independent document.
8. The decision on the complaint on behalf of the superior customs authority is made by the head of this customs authority or the official of the customs authority authorized by him. The complaint is considered within one month from the date of its receipt. The term of consideration of the complaint may be extended, but not more than one month. Notice of extension of the period of consideration of the complaint shall be sent to the applicant no later than three working days from the date of its acceptance by registered mail.
9. According to the results of consideration of the complaint, the customs authority takes one of the following decisions:

1) recognizes the customs authority’s decision, action (inaction) being appealed against as lawful and refuses to satisfy the complaint;

2) recognizes the customs authority’s decision, action (inaction) being appealed against as illegal in whole or in part and decides to satisfy the complaint in whole or in part.

10. The complaint cannot be considered on the merits in the following cases:

1) there is a decision made in accordance with article 298 of the Federal law No. 289-FZ by the same customs authority or a higher customs authority on the same subject of the complaint;

2) the terms of the appeal established by part 1 of article 289 of the Federal law No. 289-FZ are not observed, and the applicant did not submit the petition for restoration of term for the appeal or such petition is rejected by customs authority;

3) the decision, action (inaction) of the customs authority and (or) circumstances to be established by the customs authority in connection with the consideration of the complaint shall be the subject of consideration of the court;

4) the complaint is filed by a person whose rights, freedoms or legitimate interests have not been affected by the appealed decision, action (inaction) ;

5) there is no subject of appeal (the fact of the decision of the customs authority or the Commission of an action (inaction) has not been confirmed);

6) failure by the applicant to comply with the requirements to the form and content of the complaint established by parts 1 and 3 of article 290 or part 2 of article 300 of the Federal law No. 289-FZ;

7) the applicant has not submitted the documents confirming powers of the person who filed the complaint under the provisions of part 1 of article 291 of the Federal law No. 289-FZ.

The decision on refusal in consideration of the complaint shall be made no later than five working days after the day of receipt of the complaint or the documents confirming the basis for it. The decision to refuse to consider the complaint is sent to the applicant by registered mail no later than three working days from the date of its adoption.

11. These Instructions are developed on the basis of article 358 of the Customs code of the Eurasian economic Union.

Requirements for the form of the complaint

 Complaints on decisions, actions (inaction) of customs posts are submitted to and considered by the Kaliningrad regional customs (236016, Kaliningrad, Artillery str., 26, building 1).

Complaints on decisions, actions (inaction) of the Kaliningrad regional customs are submitted to FCS of Russia (121087, Moscow, Novozavodskaya St., 11/5) through the Kaliningrad regional customs (236016, Kaliningrad, Artillery St., 26, building 1).