Application of sanctions in Peruvian Customs Legislation: Guidelines and controversial aspects

Introduction

Since the birth of law, the legislator sought a way to regulate, regulate and even prohibit a series of human behaviors, so it was inevitable that in the same way that certain rules were attempted to be established for the benefit of society, on the other hand, crimes and infractions were also born.

The same thing happened in customs law, the legislator established certain rules for the correct performance of a customs clearance, and in the same way, established which conduct would be considered contrary to this correct procedure, giving rise to the assumptions that would be understood as customs violations or - in specific cases - customs crimes.

In Peru, the legal framework that regulates customs conduct is the General Customs Law, approved by Legislative Decree No. 1053, (hereinafter, the “LGA”) and its Regulations, approved by Supreme Decree No. 010-2009-EF, (hereinafter, the “RLGA”).

Thus, Article 1 of the LGA establishes that the purpose of said device is to regulate the legal relationship established between the Peruvian customs authority, that is, the National Superintendence of Tax Administration (hereinafter, the "SUNAT") and all persons - natural and legal - who intervene directly or indirectly in the entry, permanence, transfer and exit of goods to and from the Peruvian legal customs territory.

Similarly, in order to make clear the objectives of trade facilitation, the same rule in its article 4 indicates that customs services are essential and are intended to facilitate foreign trade, contribute to national development and ensure customs control and fiscal interest, for which the customs authority must issue regulations that regulate the issuance, transfer, use and control of documents and information related to such activities.

As can be seen, it is the LGA that regulates the entire customs legal framework in Peru and the RGLA is the device that, in light of what is regulated by the LGA, details and specifies the customs regulation.

Determination of violations according to Peruvian customs legislation

Continuing with what has been said above, it is clear that the LGA is ultimately the device that establishes the rules of the game with regard to customs law and the RLGA, as its name indicates, is responsible for breaking down everything regulated by the LGA.

Regarding the determination of infractions, we have that the LGA in its article 190° establishes that the infractions are determined in an objective manner, that is, that with the sole fact of having materialized the conduct or omission described as an infraction, the SUNAT would have the power to determine and finally impose a sanction.

Interestingly, Article 188 of the same regulatory body states that for an act to be classified as an infraction, the conduct or omission must be previously provided for as such in a law, indicating that sanctions cannot be applied for an extensive interpretation of the law. The latter is important, since it is the LGA that establishes that SUNAT may not interpret extensively, that is, interpret beyond the textual interpretation itself, since this would result in an offense to the legal security of the administered, as well as to the principle of legality and due process, leading to the sanctioning of conduct or omissions that are not within the regulatory framework.

Returning to Article 190, said article also indicates that violations may be administratively sanctioned with fines, confiscation of goods, suspension, cancellation or disqualification of authorizations to engage in foreign trade activities.

However, is the LGA or the RLGA the rules that apply customs sanctions in Peru? In this regard, article 191 of the LGA states that sanctions are applied in accordance with the Table of Sanctions approved by Supreme Decree No. 418-2019-EF, (hereinafter, the "Table"), which will identify the offender, specify the assumptions of infringement, set the amount of the sanctions and develop the particularities for their application, among which are the severity of the infringements.

As can be seen, although the LGA and the RGLA establish the criteria for determining sanctions, it is the Table that will ultimately be the instrument that applies the sanctions, after they are determined by SUNAT, so in said texts it will be possible to find the budgets, severity and sanction applicable to customs conduct, which may be imposed on importers, exporters, foreign trade operators and third parties.

Next, we will analyze the way in which the LGA and the RLGA provide that SUNAT determines the commission of infractions and in the same way, under this regulatory framework, how certain gaps that violate the interests of the administered have been identified.

Guidelines for applying sanctions: a good system poorly applied

Now, taking into account the above, where the LGA and the RLGA provide that the Table will be the legal device that applies sanctions to customs violations, it must be clarified that there is a difference between applying sanctions and determining violations.

Cosío Jara (2017) points out that the determination of the infractions refers to the fact that the infractions are objective, which means that it is not required that the offender has acted with intent or guilt, so it is enough to identify the fact examined with the legal figure described to qualify that the referred fact effectively qualifies as an infraction.

However, despite the LGA indicating that violations are determined objectively, in article 194° it establishes that there will also be mitigating and aggravating causes of the offender's liability, which the SUNAT must take into account - facts and circumstances - when applying a sanction. It also indicates that the RLGA will indicate what these guidelines are.

For its part, and in accordance with the LGA, article 248° of the RLGA established a series of guidelines that SUNAT must take into account when applying sanctions, which are the following:

• The severity of the damage or economic loss caused.
• The circumstances of the commission of the infringement.
• The existence or not of intentionality in the offender's conduct.
• Voluntary correction of the offending conduct.
• Recidivism within the established period.
• The category of the offending foreign trade operator.
• The status of the offender as an authorized economic operator.
• The impact of committing an infringement on customs control.
• The possibility of graduating the sanction.

As can be seen, we can see that, although the LGA indicates that the infractions are determined objectively, that is, by the sole fact that the conduct that is the subject of the infraction materializes, the RLGA maintains that when SUNAT applies the sanction corresponding to the infraction already determined, it must take into account the facts and circumstances, since it may analyze aggravating or even mitigating situations and in this way, apply a sanction that is proportional to the facts that occurred.

Now, despite the fact that these guidelines have been in force since the RGLA came into force, that is, since 2010 and modified by Supreme Decree No. 367-2019-EF, SUNAT has always been very cautious regarding its implementation, that is, despite the fact that it was correctly implemented in the legal texts, when the administrator requested that when applying sanctions, SUNAT take into account all the facts and circumstances, SUNAT simply maintained a very arbitrary and even legally incorrect position.

For better understanding, SUNAT reports No. 113-2020-SUNAT and No. 043-2021-SUNAT are cited, in which a formal query was made to the Legal Customs Office of SUNAT regarding various queries regarding the application of the guidelines for applying sanctions, to which SUNAT responded as follows:

"The aggravating or mitigating circumstances of liability indicated in article 194 of the LGA cannot be applied, due to the lack of complementary regulations that must be issued under Article 248 of the RLGA."

As can be seen, SUNAT from 2020 to the end of 2021 held a somewhat arbitrary position, which indicates that due to the fact that the complementary regulations had not been implemented to be able to apply the guidelines, SUNAT cannot carry out said analysis, that is, take into account all the facts and circumstances of article 248° of the RLGA.

For your information, this position is not legally correct, since SUNAT, as a public body, has the obligation to always respond to requests made by citizens and much less, to fail to issue a statement due to the lack of implementation of a rule. This has been established by article VIII of the Preliminary Title of the TUO of the General Law of Administrative Procedures, as we can see:

“Article VIII.- Lack of sources

1. Administrative authorities may not fail to resolve the issues put to them due to the deficiency of their sources; in such cases, they shall resort to the principles of administrative procedure provided for in this Law; failing that, to other supplementary sources of administrative law, and only subsidiarily to these, to the rules of other legal systems that are compatible with their nature and purpose.”

Therefore, if the general administrative regulations in Peru maintain that public administrations cannot fail to issue their pronouncements due to lack of implementation of the regulations, and if this occurs, apply in a supplementary manner regulations of higher hierarchy and even regulations of other legal systems, it is not possible for SUNAT to issue legal reports that maintain the opposite, since this only means a great violation of the principles of legality, due process and due motivation of the pronouncements that all public administrations must respect.

Now, analyzing the position of SUNAT, they argue that the guidelines for applying sanctions, that is, the evaluation of the facts and circumstances (subjective aspects) must be implemented with a specific rule, a situation that the legislator did not actually raise in that way, since article 194° of the LGA establishes that it is the RGLA that will establish the guidelines -or rules of the game- that must be followed for the application of sanctions, being that this last rule provided all those guidelines to be taken into account, which can be applied individually or jointly.

As can be seen, the RLGA already establishes all the aspects -guidelines- that SUNAT must take into account, so it is not necessary to issue a rule that establishes the procedure or way in which the guidelines are applied, since as we have been able to review, these guidelines are subjective aspects that must be taken into account at the time of the analysis that SUNAT carries out when applying sanctions and in this way determine the sanction that corresponds to the offender.

In this sense, is the issuance of a complementary regulation essential? Does SUNAT not have the power to carry out an analysis of objective and subjective aspects when applying sanctions? Apparently not, since on 14/12/2021, Superintendency Resolution No. 000185-2021/SUNAT was issued, which regulates the guidelines for applying the sanctions provided for in the LGA (hereinafter, the "Resolution").

Therefore, when a regulation was issued that regulates the way in which SUNAT takes into account the guidelines of article 248 of the RLGA, we understood that SUNAT would always take into account the facts and circumstances either ex officio - that is, on its own initiative - or on behalf of - that is, at the request of the offender. However, the content of this regulation would completely change the rules of the game established by the LGA and its RLGA.

The controversial and even illegitimate fact is that the Resolution establishes that SUNAT will only apply these guidelines to a small group of infractions, which means that not all infractions may be subject to an analysis of the facts and circumstances to apply sanctions, but on the contrary, it considers that this analysis should only be applied to a group of sanctions.

Number of violations for which the facts and circumstances will be analyzed (guidelines) Total LGA violations Number of violations not considered under analysis of facts and circumstances
Phone: 11 146 135

As can be seen, not even 10% of the LGA violations have been considered by the Resolution so that SUNAT can analyze the facts and circumstances when applying sanctions.

This is an unprecedented event, since it does not consider violations that are recurrent in customs operations, that is, violations that are usually committed on a recurring basis by the main foreign trade operators, as well as by importers, exporters or beneficiaries of customs regimes, and therefore does not represent true operations.

This situation inevitably leads to the fact that day-to-day violations in the actual customs operations are not included in the analysis of the facts and circumstances and the customs agencies or cargo agencies, transporters, among others, such as the following violations:

As can be seen, in reality the Resolution that established how the guidelines for applying sanctions should be applied ended up being a rule that includes the application of the facts and circumstances for a small group of infractions that in no way represents the core of customs operations and, on the contrary, only benefits a group of operators.

It is understood that the legislator, when drafting the articles of the guidelines for applying sanctions, that is, article 194 of the LGA and 248 of the RLGA, has not established that the analysis of the facts and circumstances that SUNAT will carry out will only be applied to a group of infractions, that is, that infractions will be discriminated and that in a certain way a taxative or closed list of infractions will be established that will be subject to analysis of facts and circumstances.

The above means that the meaning and nature of the possibility of SUNAT analyzing facts and circumstances has a general scope, being interpreted that it can affect the universe of infractions established in the Table of Sanctions and not a closed group of infractions, since the latter would mean ignoring the true meaning of the norm. The latter is clearly noticeable, since, from a single reading of the aforementioned articles, it can be seen that it refers to the possibility of analyzing facts and circumstances of infractions and not a group of selected infractions.

For this reason, when the Resolution was issued, it made no sense that SUNAT ultimately decided that the application of the guidelines would only affect a small group of violations, which, by the way, does not represent even 10% of the total number of violations in the current Sanctions Table. The correct thing to do would be to modify the Resolution so that the guidelines can be applied to the universe of violations in the Sanctions Table.

As can be seen, it is not correct that SUNAT currently only provides for the application of the guidelines to apply sanctions for a small group of infractions that do not represent customs operations in Peru, given that, as we have seen previously, the correct thing is to apply said guidelines in a general way to all infractions of the Table of Sanctions, since in this way the true intention of the legislator can be ensured and the legal security of foreign trade operators and intervening operators can be fulfilled.

The fact is that currently when an operator requests the application of the guidelines for an infraction that is not included in the Resolution, SUNAT indicates that it is not possible to analyze the facts and circumstances due to the simplicity of not being included in the Resolution, and therefore sanctions will be applied as appropriate.

It is regrettable that, despite the fact that the LGA and its RLGA provide that SUNAT will apply guidelines to the infractions of the Sanctions Table without establishing lists or discriminating infractions, it is not without legal or technical support that the Resolution finally establishes an exhaustive list and that approximately 90% of infractions do not enjoy the power to be able to analyze the facts and circumstances, since this generates a clear situation of defenselessness and lack of legal security.

In this sense, it is correct that SUNAT, under the articles of the LGA and RLGA, analyze the facts and circumstances of the infractions included in the Table of Sanctions, since in this way the intention of the legislator can be guaranteed in the face of aggravating or mitigating conditions when applying a sanction.