Current overview of the use of payment methods in foreign trade operations. Is an update necessary?

1. Evolution of trade:

It is no surprise to anyone that foreign trade has grown by leaps and bounds. The World Trade Organization (WTO) notes that the volume of world trade is about 44 times that recorded in the early days of the GATT (a growth of 4400% between 1950 and 2023) (1)

However, although the level of operations has increased compared to other years, it is also true that a clear increase in suspicious operations in commercial transactions has been identified, which in many cases have to do with money laundering, smuggling, falsification of commercial documents and misrepresentation of financial transactions related to commercial operations (2).

Due to these types of commercial risks and alleged customs crimes, customs authorities around the world have decided to establish public policies to combat cybercriminals and thus ensure the integrity of the logistics chain.

2. Regulatory framework for payment methods in Peru:

In Peru, the Consolidated Text of the Law for the fight against evasion and for the formalization of the economy, approved by Supreme Decree No. 150-2007-EF, was published. It establishes the conditions under which in a foreign trade operation the monetary obligation must be paid using banking, that is, the obligation to use the tools of the financial system, in such a way that not only the commercial operation is supported by banking entities, but also the logistics chain is secured.

The aforementioned legal device establishes the following means of payment:

• Deposits into accounts.
• Fund transfers.
• Debit cards issued in the country.
• Credit cards issued in the country.
• Checks with the clause “non-negotiable”, “non-transferable”, “not to order” or other equivalent, issued under Article 190 of the Securities Law.

As can be seen, it is the importer's obligation to use payment methods in commercial transactions, since in this way the operation is secured and in the same way banking and the formalization of commercial operations at an international level are encouraged.

Now, although the aforementioned rule is not specific to customs legislation, SUNAT adapted it to form part of this legislation, creating provisions that would oblige importers to declare or demonstrate the use of payment methods.

An example of this is that in format B of the Customs Declaration of Goods (DAM) the importer must declare not only the type of means of payment used, but also the nature of said transaction, which may vary between purchase and sale, leasing, replacement, repair, successive sales or barter, to name just a few types of nature.

Therefore, if an importer fails to declare the nature and type of means of payment used, he will be committing an infraction punishable by 30% of the FOB value of the merchandise to be imported, in accordance with the provisions of the Table of Sanctions, approved by Supreme Decree No. 418-2019-EF. It should be noted that this fine is applicable exclusively to the importer and is considered serious, according to the following table:

It is clear then that SUNAT has full supervisory and controlling power, which allows it to audit all importers, in order to demonstrate the use of payment methods, and said importer must share commercial, financial and even accounting documentation depending on the customs official.

However, SUNAT's desire to control every aspect of the logistics chain leads to excesses, since audits are still very outdated and are based on the evidence (mostly documentary) presented by the importer.

There is a need for a dose of use of new technologies, such as Smart Contracts, use of Blockchain, artificial intelligence, among others, that allow for the exchange of information in real time and in a secure – fluid manner.

3. The application of this regulation by SUNAT in customs procedures:

Now, after having laid the general foundations of what is understood by the obligation to demonstrate the use of means of payment, it is now time to touch on some controversial points that arise from the aforementioned obligation.

3.1. The violation for not proving the use of means of payment is only applicable to the importer. What happens in the case of the customs agent?

The Table of Sanctions applicable to violations of the General Customs Law provides that the obligation to provide evidence of the means of payment is an action that corresponds entirely to the importer, and to tell the truth it is so, since it is the importer who must inform the customs agent about the nature and type of means of payment used in the commercial transaction.

However, while it is true that this obligation is entirely the importer's, there is also the possibility that the latter provides the information to the customs agent and that the importer does not declare such information in the customs declaration. 

In this situation, it should be the customs agent's responsibility and assume the responsibilities that come with not declaring the means of payment, since the importer was diligent and the omission was the declarant's (customs agent). For these purposes, a modification of the assumptions of infringement is necessary, in order to include the customs agent as an offender in this specific case.

3.2. The filing of the DAM and the illogical connection of SUNAT with the means of payment.

When an importer has numbered a customs declaration and, as a result, paid the tariff duties (ad/valorem) and other taxes applicable to the import (VAT, ISC, IPM, among others), it is understood that their customs obligations have been fulfilled.

In this regard, if the importer considers leaving the numbered declaration (filing) without effect due to having incurred in some of the causes for filing (3), you must request it from SUNAT, for which you must prove that you are involved in some cause.

As a result, SUNAT voids the customs declaration and the goods are transferred to a state where they are not intended for customs purposes. Given this situation, the correct thing to do is that, once the taxes applicable to the import have been paid, SUNAT proceeds with the refund, considering it to be an undue payment.

However, SUNAT currently requires that the importer prove the use of the means of payment and the financial transactions in order to refund these taxes. This raises the following question: What do the means of payment have to do with filing a declaration?

Actually, not much. The right to a refund of taxes paid unduly is generated or gained when the taxes have been paid and the declaration is filed. Therefore, the simple fact that the above has been fulfilled is sufficient for the importer to request a refund.

Currently, SUNAT is not satisfied with what is indicated in the previous paragraph, but, in order to comply with the money laundering regulations, it requests that the importer prove the price actually paid to the supplier, a situation that at that time does not make much sense because they are different concepts. This means that it is not always mandatory to prove the use of the means of payment.

3.3. Are payment methods a “new requirement” for subsequent acceptance of tariff preferences?

As is well known, in order to qualify for tariff preferences, whether during or after clearance, the importer is obliged to verify compliance with the negotiation, origin and direct dispatch requirements, under the corresponding Trade Agreement.

However, currently, in addition to verifying compliance with these requirements, SUNAT also requests the importer to present financial and commercial documents that prove the use of the means of payment.

It should be noted that, as part of the requirements for receiving tariff preferences, no Trade Agreement has established as a “requirement” the verification of the use of means of payment.

Although each country has the power to internally regulate the conditions for receiving tariff preferences, this should in no way be understood as the possibility of creating new requirements and, as a result, if they are not met, declaring a subsequent request for acceptance inadmissible.

4. Final Thoughts

As can be seen, SUNAT has the power to request the importer to show the use of the means of payment to the importer. However, this does not mean that it is requested in any procedure, since there are times and conditions in which the importer must show it.

The fact that SUNAT requests them in an irrational manner can be understood in a certain way, given that said institution does not have a digital platform that allows it to track information and/or documentation in real time of all events that prove the use of payment methods in international transactions.

To do this, SUNAT needs to be supported by emerging technologies, such as the use of Blockchain, which allows it to access information on the commercial transaction and demonstrate its compliance. If this were implemented, SUNAT could demonstrate the traceability of the information without having to ask the importer to show the means of payment. It would be enough to grant the necessary permits for SUNAT to be aware of the documents corresponding to the commercial operation. 

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1.https://www.wto.org/spanish/res_s/statis_s/trade_evolution_s/evolution_trade_wto_s.htm#:~:text=Crecimiento%20del%20comercio&text=A%20fecha%202023%2C%20el%20volumen,son%20del%209%25%20en%20promedio

2. https://www.delitosfinancieros.org/el-lavado-de-dinero-a-traves-del-comercio-internacional-necesita-mejor-analisis-de-datos-y-mayor-intercambio-de-informacion/

3. Article 201°.- Filing

The customs authority, at the express request of the interested party or ex officio, orders that the numbered declarations be cancelled in the case of:

     a) Prohibited goods;

     b) Restricted goods that do not meet the requirements established for their entry or exit;

     c) Totally damaged or damaged goods;

     d) Goods that at the time of physical inspection or verification in the primary area after lifting, are found not to meet the purpose for which they were acquired, understood as those that are deficient, that do not meet the agreed technical specifications or that were not requested.

     e) Goods requested under the import regimes for consumption, re-importation in the same state, temporary admission for re-exportation in the same state, temporary admission for active processing, customs warehousing, customs transit, transshipment, re-shipment or express delivery shipments, which are in legal abandonment and whose clearance process has not been completed;

     f) Goods that do not correspond to the requested customs destination;

    g) Goods that did not arrive;

     h) Goods not available at the time of dispatch, after thirty calendar days following the numbering of the declaration.

     i) Goods not shipped abroad during the period granted;

     j) Goods requested with a simplified import declaration, whose adjusted FOB value exceeds three thousand United States dollars (US$ 3);

     k) Goods with customs destination in two or more declarations.

     The Customs Administration determines which declaration will be voided.

     l) Postal packages subject to return to origin, reshipment or forwarding, under the Universal Postal Convention;

     m) Others determined by the Customs Administration.

     The customs authority orders that these declarations be voided, without prejudice to the application of sanctions for violations incurred by foreign trade operators in the declarations that are filed.