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LEGAL SECURITY IN THE CUSTOMS REGULATION IN FORCE

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The 6th of March of 2019 will mark the third anniversary of the enactment of the “New” customs regulation or “New” Customs Statute: Decree 390 of 2016. It is hard to think that it is the “customs regulation applicable” since a large percentage of articles thereof are not yet in force.

For its enactment, the previous Government established the following “staged” formula: a group of articles would come into force 15 days after its publication; another group would come into force once the same were regulated, for which it established a term of no more than 180 days; and the last group would come into force once the customs data system was implemented.

However, in Circular Letter 003 of the 22nd of March of 2016, the National Taxes and Customs Bureau, Dian, changed the enforcement of several articles, which initially was 15 days after its publication, and postponed it to after the implementation of the new data system.

Regretfully, the Circular Letter, which is different from the recent Legal Security Circular Letter, was a preview of the problems that the staged enforcement would bring to the application of the Customs Regimen.

The enforcement of the bulk of the articles has been constantly postponed, which has generated many confusions regarding which provisions are actually in force on certain customs’ issues. In the last two years there have been several projects of Regulatory Resolution around, and with the enactment of Decree 349 of 2018, the date of enforcement of the remaining parts of the “New” Statute was postponed, even introducing changes to some of the provisions that had already came into force.

Now, the maximum term of 180 days for the regulation of the respective articles, is not a whimsical term set by the government. It is Law 1609 (Customs’ Framework Law) the one that, in its 5th Article, points out that any provision requiring regulation to come into force shall be regulated by the competent entity within 180 days after the date of its publication and also requires, even for the data system the “performance of pilots tests of its operation, in six (6) – month intervals”.

This uncertainty has also been reflected in the increase of requests for opinions from the Dian, which are binding and mandatory, being the “official interpretation” (Legal Security Circular of the 30th of July of 2018). Furthermore, on the past 27th of August, official letter 384 of the 10th of April of 2018 was updated, establishing the customs provisions “in force”.

Hence, now is the time to define whether on the 6th of March of 2019 the National Government in power will celebrate the third anniversary of a “New” Statute that is not in force or if, as an important foreign trade sector is requesting, the formula of the staged enforcement is suspended and only when the pilot tests have concluded and the whole IT system is ready it proceeds with the enforcement of the new customs regulation.


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Author: Juan David Barbosa