IN our column dated 09 August 2010, we mentioned that RA 9853, which effectively amended RA 9280, has been passed and approved since January of this year. It has been more than 9 months and the Bureau of Customs (BOC) has yet to issue the necessary guidelines to implement said law.
Background
Prior to the passage of RA 9280, importers were allowed to directly file, lodge and process their own import entries without engaging a customs broker professional. In addition, corporations were authorized to engage in the customs brokerage business. The passage of RA 9820 resulted in: (1) the prohibition on importers from filing, lodging and processing their own import transactions with customs; and (2) the prohibition on corporations from engaging in customs brokerage business.
The passage of RA 9853 has now lifted the prohibition on customs brokerage corporations. The prohibition or limitation on importers, however, remains.
Unresolved Issues
The passage of RA 9853 has unfortunately not resolved many of the issues confronting the various industries dealing with customs. For one, customs has yet to decide whether corporations can be allowed to register and lodge entries under the current E2M system.
Second, with the automation of many of the customs broker services, can importers perform certain functions that may be considered as merely manual and clerical, or outside of scope of customs broker professional service (e.g. pick of import and bank documents, bank transactions, releasing of imports from customs and transport services)?
Professional Practice
Section 6 of RA 9280 defines the customs broker profession as consisting of “consultation, preparation of custom requisite documents for imports and exports, declarations of customs duties and taxes, preparation and signing, filing, lodging and processing of import and export entries, representing importers and exporters before any government agency and private entities incases related to valuation and classification of imported articles and rendering of other professional services in matters relating to customs and tariff laws, its procedures and practices”.
In practice, many of the import functions are performed by third parties (importers, forwarders, truckers, etc.) other than the customs broker or his staff. The whole import function may be summarized as follows:
- Documentation and support service (pick of documents with forwarders, banks and importers; payment of freight, duties and taxes, and other fees)
- Filing and process if import licenses and permits
- Payment of port charges to third parties (shipping lines, port operators, etc.)
- Entry preparation, declaration, lodgment and processing
- Releasing of shipment from warehouse operator, container yard or container freight station
- Processing permits at free ports and PEZA zones
- Transport of the shipment from customs to importer
While Section 6 of RA 9280 provides the scope of custom broker professional practice, many of the actual import functions and processes are clearly outside the defined professional practice. In other words, third parties (importers, forwarder, truckers, etc.) may legally perform many of these import functions and processes.
In addition, with the automation of many of the import processes, customs broker service has become minimal when compared to the total import value chain.
Corporate Practice
The passage of RA 9853 has now allowed corporations to engage in the customs brokerage business subject, however, to the condition that the company should engage at least one customs brokerage professional and should have at least P1 million in paid-up capital. BOC will need to register and regulate these corporations to protect the transacting public.
The opinion of the Professional Regulatory Commission (PRC) that customs professional may only be engaged as an independent contractor is clearly a violation of the professional’s constitutional right to practice his profession in whatever kind of professional arrangement — as an independent contractor, as a full time corporate employee or official, or based on a project arrangement.
The author is an international trade, indirect tax (customs) and supply chain expert. He is the Editorial Board Chairman of Asia Customs & Trade, an online portal on customs and trade developments affecting global trade and customs compliance in Asia. He was also Bureau of Customs Deputy Commissioner for Assessment and Operations Coordinating Group (2013-2016). For questions, please email at agatonuvero@yahoo.com and agatonuvero@customstrade.asia