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Next, we will consider cases when Method 1 cannot be used to determine the customs value (Part 2 of Article 19 of the Law).

1.A prerequisite for the application of method 1 isno restrictions on the buyer's rights to the evaluated product,with the exception of:

  • restrictions established by the legislation of the Russian Federation
  • restrictions on the geographical region in which goods can be resold
  • restrictions that do not significantly affect the price of the goods

In practice, there are transactions when the buyer is limited in his rights to use, own or dispose of the purchased goods, which, as a rule, affects the price of the goods, of course, not in the direction of its increase. For example, a prerequisite for the purchase and sale of equipment is that the buyer does not have the right to resell (lease) it to third parties without the appropriate permission of a foreign seller. In such cases, method 1 cannot be used.

The exception to this condition, as already noted, are the restrictions established by the legislation of the Russian Federation. For example, requirements for obtaining a special permit, for the use of imported goods, testing, etc.

The restrictions of the geographical region in which goods can be resold mean territorial restrictions on the sale of goods that are introduced by a foreign seller. For example, the seller has in Russia, conditionally divided into regions, its official representatives in each of these regions. A representative of a foreign company has the right to resell imported goods only in the territory designated by the foreign seller. Restrictions on the buyer's rights of this kind cannot be grounds for refusing to use method 1.

Under the restrictions that do not significantly affect the price of goods, it is possible to indicate the restrictions characteristic of the commercial practice of industries (maintaining secrecy in the electronic industry in order to prevent industrial espionage), individual goods (fruits, vegetables that are influenced by seasonal factors).

The determination of the degree of "significance" of the impact of restrictions on the buyer's rights to imported goods on the transaction price, and hence on the possibility of using method 1 for customs assessment, is considered individually by the customs authority in each case.

2. Method 1 cannot be applied ifthe sale and the transaction price depend on compliance with the conditions, the quantitative impact of which on the transaction price cannot be taken into account.

As examples of conditions of this kind , the following situations can be specified:

the price of imported goods depends on the provision of certain services by the buyer to the seller (a foreign seller sells goods worth 150 thousand US dollars to a Russian buyer, provided that the buyer undertakes to provide him with certain information services.

the seller sets the price for imported goods, provided that the buyer also buys other goods in certain quantities (a foreign seller sells televisions at a price of $ 300 per unit, provided that a Russian buyer buys 5,000 car radios at a price of $ 75 per unit).

 It should be noted that there are conditions that are generally accepted and apply to all participants in foreign economic activity, that is, those that do not affect the possibility of using method 1.

Such conditions include:

  • delivery terms according to "Incoterms" in the 1990 edition;
  • conditions for concluding transactions and making deliveries of the type "purchase subject to the connection of an expert (availability of an expert opinion)", etc.;
  • purchase subject to delivery of the goods before a specific date;
  • conditions such as discounts on the quantity of goods, on "loyalty" to this seller, etc.;
  • provision by the buyer to the seller of technical developments or drawings made in the buyer's country;
  • implementation by the buyer at his own expense (possibly even by agreement with the seller) of any actions related to the sale of imported goods by the buyer, for example, advertising activities paid by the buyer;
  • requirement for testing or testing of goods;
  • the requirement to ensure the confidentiality of information and the secrecy of certain information in relation to imported goods.

Method 1 is not applicable in cases where the data used by the declarant when declaring the customs value is not documented or is not quantified and reliable.

That is, the transaction price can be recognized by the customs authority, which means that the customs value can be determined by method 1 only if all its components are documented. The reliability requirements in this case mean that, firstly,customs authoritiesthey must be able to verify the documents submitted by the declarant (which means they must be available in Russia), secondly, the information contained in the documents submitted by the declarant should not contradict each other, otherwise method 1 cannot be used.

Method 1 cannot be applied also ifthe participants of the transaction are interdependent persons.

Interdependent persons are persons who satisfy at least one of the following criteria:

  • one of the participants in the transaction (an individual) or an official of one of the participants in the transaction is simultaneously an official of another participant in the transaction;
  • the participants of the transaction are co-owners of the enterprise;
  • the participants of the transaction are bound by labor relations;
  • one of the participants in the transaction is the owner of a deposit (share) or the owner of voting shares in the authorized capital of another participant in the transaction, amounting to at least 5% of the authorized capital;
  • both parties to the transaction are under the direct or indirect control of a third party;
  • the parties to the transaction jointly control, directly or indirectly, a third party;
  • one of the parties to the transaction is under the direct or indirect control of the other party to the transaction;
  • the participants of the transaction or their officials are relatives.

Information on the mutual dependence of the seller and the buyer, as well as on the presence or absence of the influence of this dependence on the transaction price, is indicated by the declarant.

However, this does not mean that in itself the existence of such interdependence between the parties to the transaction is automatically grounds for refusing to use method 1 for customs valuation. The law establishes that method 1 can be applied if the interdependence did not affect the transaction price.

Attention should be paid to the following: in accordance with the Law, the duty to provide the customs authority with reasonable evidence that the interdependence of the counterparties did not affect the transaction price falls on the declarant. The Customs authority determines the reliability and sufficiency of the submitted evidence. As a confirmation of this fact, documents must be submitted proving that this price level is typical for other transactions concluded between independent persons and corresponds to the price level of a free, competitive market. Otherwise, method 1 is not applicable.

Reasonable doubts that the price assigned to the dependent buyer is very low and, therefore, has been influenced by interdependence (even ifdeclarantattempts to prove the opposite), may occur, for example, in the following cases:

  • the level of prices set in the contract clearly indicates that the goods were not sold to an independent buyer;
  • as a result of the circumstances surrounding the transaction, it turned out that the price calculation does not comply with the accounting standards accepted in this industry;
  • the difference between this price and the price set for resale of the goods is too large;
  • there are prices for identical or homogeneous goods sold to an independent buyer that differ significantly from this price.