The Federal Fiscal Court made a final decision in the much-discussed "Hamamatsu" case, ruling of 17 May 2022 VII R 2/19 (ECLI:DE:BFH:2022:U.170522.VIIR2.19.0; published end of September 2022).
In doing so, the BFH concludes that it is not possible, even within the framework of the final method of Art. 31 CC (today: Art. 74 (3) UCC), to take as a basis as a customs value an agreed transaction value which is composed partly of an amount initially invoiced and declared and partly of a lump-sum adjustment after the end of the accounting period, without it being possible to say whether at the end of the accounting period this adjustment will be made upwards or downwards.
If, at the time of acceptance of the customs declaration, it is not certain whether an adjustment will have to be made at all at the end of the accounting period and, if this is the case, whether the adjustment will have to be made upwards or downwards, then a value of the goods that has consequently yet to be determined at the time of acceptance of the customs declaration is not quantifiable within the meaning of Article 8(3) of the Convention on the Implementation of Article VII of the General Agreement on Tariffs and Trade 1994. VII of the General Agreement on Tariffs and Trade of 1994.
The BFH based its decision primarily on the fact that the customs valuation is a commodity-based and cut-off date-based valuation. The point in time at which the customs declaration was accepted was to be taken into account. Changes in the factual or legal circumstances that only occur after payment of the amount of duty would not justify a refund under Article 236(1) of the CC (now Article 117 of the CCC). According to the decision of the ECJ (ruling of 20.12.2017 C-529/16), this also applies to subsequent transfer pricing adjustments, which serve as an income tax instrument to avoid disputes and reduce transfer pricing risks.
The BFH thus confirms the view of the German customs administration regarding the customs valuation treatment of subsequent transfer pricing adjustments in the form of lump-sum, i.e. non-product-related, credits. However, it is now questionable whether the customs administration can stick to its previous view on the treatment of contractually agreed subsequent product-related transfer pricing adjustments and, in particular, adjustments in the form of lump-sum subsequent debits. This is because in the latter case the customs administration currently assumes price influence due to relatedness, as the prices invoiced during the year were obviously too low and too little import duty was levied (E-VSF Z 5101 para. 30 and 31). The customs administration is therefore currently correcting the customs values declared during the year by the amount of the subsequent debit and collecting import duties subsequently. The treatment of retrospective transfer pricing adjustments under customs value law therefore remains partly unresolved even after this ruling.
Link:
Judgment of 17 May 2022, VII R 2/19
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