Almost everyone who wants to buy a car, thought about the option to buy a car abroad with the ability to drive a car, use it and not pay for customs clearance. The Internet is full of tips and suggestions such as: how to buy cars abroad while avoiding any customs payments when crossing the border.
However, immediately there are questions: What are the ways of movement on non-cleared cars on the territory of Ukraine? Is it legal? Would it not happen that after such a purchase the owner will be left without money and a car?
Immediately we can say that you can go to non-cleared cars in Ukraine. However, there are a number of legislative requirements, non-compliance or violation of which may lead to the imposition of sanctions and liability of the guilty person.
It should also be noted that the norms of the Ukrainian legislation are written in such a way as not to give the citizen of Ukraine the opportunity to avoid the customs clearance procedure of the foreign vehicle.
We will analyze three main ways of moving to non-cleared cars in Ukraine with confidence in the legality of such actions.
Method 1. “Acquisition” of a non-customs car by a Ukrainian citizen from an alien owner (for example – a Pole) with the need to cross the state border every 5 days in the zone of the activity of one customs office (not to be confused with a border crossing point) or every 10 days, in case of crossing Border in the area of operation of another customs.
The procedure of “acquisition” is usually carried out in the territory of the country in which the car is registered and is not standard, since the transaction is not accompanied by the conclusion of a contract of sale, and therefore you do not become the owner of the car in this case, but only get the right of use On behalf of the owner. The documents that confirm your right to use this car are: a power of attorney certified in accordance with the procedure established by law was issued to a citizen of Ukraine by an automobile owner-foreigner and a technical passport on a car. By the cost and procedure for processing these documents, it is determined by your agreement with the foreign owner. There are many such arrangements, the amount of registration of documents can be included in the cost of the car or be determined separately. In any case, you agree in advance with the owner of the machine about the order and the cash costs for processing such a transaction.
On the need for regular crossing of the state border, this is due to the following. In order not to make customs payments (customs clearance), the car is placed in the mode of transit traffic, to which the terms of transit traffic are applied are defined in Article 95 of the Customs Code of Ukraine from 13.03.2012 No. 4495-VI, namely, the border crossing every 5 and 10 days .
It is worth noting that the transit time of the car on foreign numbers does not include the time associated with the vehicle getting into an accident or the time of force majeure, while the owner of the car must immediately inform the nearest State Fiscal Service about the circumstances Accidents and the location of the car, as well as take all the necessary measures to preserve the car and prevent any of its use – according to Article 192 of the Customs Code of Ukraine from 13.03.2012 No. 4495-VI.
The accident should be understood as damage, failure and destruction that occurred from anthropogenic (constructive, industrial, technological, operational) or natural causes. Under the force majeure it is necessary to understand: a natural disaster, military actions or a state of emergency in the region, fixed in the statutory order of the fact of the commission of criminal acts by third parties, other circumstances or events.
The message is made by submitting to the nearest GFS authority (preferably before the customs office, but not specified by law) applications and documents confirming the fact of transit time exceeding (police, court, hospital, rescue service, etc.).
In the event that the transit time was exceeded without due cause, the customs offender is liable for liability under article 470 of the Customs Code of Ukraine dated 13.03.2012 No. 4495-VI. So, he may face a warning or a fine of 170 to 8500 UAH. All depends on the time for which the transit time was exceeded.
The Law of Ukraine “On the National Police” does not contain rules that would authorize police officers to monitor compliance with customs regulations and stop a vehicle only because it is on foreign registration. Therefore, law enforcement officers can not attract the car owner to responsibility for driving on foreign numbers. However, between the bodies of the State Fiscal Service and the National Police, an automated exchange of information on vehicles crossing the Ukrainian border is being carried out. Including the customs clearance and state registration of such vehicles. Therefore, the police can record the violation and transmit this information to the customs, which also makes regulations on the violation of customs regulations.
Summarizing this mode of transportation for non-cleared cars, it should be said that it is better suited for residents of border regions whose activities are associated with frequent trips to the neighboring state and is inconvenient – all those for whom the distance to the relevant checkpoints is very significant in order to do such regular Trips for the “mark”.
Note! The checkpoint across the state border (hereinafter – the PP) is a specially designated territory at automobile stations with a complex of buildings, structures and technical means where border, customs and other types of control are carried out and individuals, vehicles, cargoes and other property pass through the state border.
A more detailed definition is given in the Resolution of the CMU “On Approval of the Regulations on Border Crossing Points and Control Points” No. 751 of 18.08.2010.
On a clear legislative definition of the concept of “customs”, then this does not exist. This concept was cited in the edition of the Customs Code of Ukraine of 11.07.2002 (now lost force) from which it can be learned that the customs is a customs authority that directly provides Implementation of Ukrainian legislation on customs matters, collection of taxes and fees and other tasks assigned to the customs service of Ukraine.
Since 2014, the State Fiscal Service of Ukraine (hereinafter referred to as GFS) is operating in Ukraine, which is responsible for implementing the state policy in the sphere of state customs.
With the adoption of the new version of the Customs Code, the standard-setting authority has not settled the issue of providing a clear definition of the term “customs”, but applies this term in the provisions of the new Customs Code of Ukraine from 13.03.2012 No. 4495-VI.
According to the content of the Provision on the establishment of “territorial” customs, which are approved by the orders of the GFS, for example, we give the Provision on the Lviv Customs of the GFS, it can be understood that the customs office is the territorial body of the GFS of Ukraine, which reports to the GFS and ensures the implementation of the GFS authority in the zone of its activities.
We conclude that several PPs can operate in the customs area of the customs office and if you want to cross the state border every 10 days, you should not just enter and leave through various PPs, but do this through the checkpoints of different regions of Ukraine, as the zone of activity of one customs house , In most cases, corresponds to the territory of a specific region of Ukraine! (For example, to enter through the PP of the Lviv region, but to leave for Volynskaia PP).
Information on the list of customs and the zone of their activities can be found at the link: http://sfs.gov.ua/zakonodavstvo/mitne-zakonodavstvo/nakazi/63374.html
The list of checkpoints across the state border can be found at: http://dpsu.gov.ua/ua/Perelik-punktiv-propusku
Method 2. Temporary import by a non-resident citizen (meaning when you have a passport of another state) to the customs territory of Ukraine of a car for private use for a period of one year.
A mandatory condition for the admission of said vehicles to temporary importation into the customs territory of Ukraine is the registration of such vehicles in authorized bodies of foreign states, which is confirmed by the relevant document. – According to Article 380 of the Customs Code of Ukraine of 13.03.2012 No. 4495-VI.
Note! In Ukraine, the principle of unified citizenship is applied, which is enshrined in Article 4 of the Constitution of Ukraine.
However, the national legislation does not directly prohibit dual citizenship, and residents of border regions use it. So, due to the gaps in the Ukrainian legislation, residents of the Transcarpathian region, neighboring Hungary, take advantage of all the advantages of the citizenship of a member state of the European Union.
By the way, there is another option, when the car is imported by a non-resident for private use, while the right to drive the car is delegated Citizen of Ukraine. This method also exists for existence, since the right to use a non-cleared car is guaranteed by the Convention on Temporary Import of 26.06.1990 (ratified by Ukraine in 2004). However, certain requirements must be observed.
Thus, Article 2 of Chapter II of Annex C of the Convention on Temporary Import (hereinafter referred to as the “Convention”) determines that vehicles for commercial or private use can be used for temporary importation.
Article 1 of the chapter and Annex C to the Convention defines the concept of “vehicle”, as well as the terms “commercial use”, “private use”, somewhat conflicting with similar definitions provided by clauses 58, 59 and 60 of the first part of Article 4 of the Customs Code of Ukraine from 13.03.2012 No. 4495-VI. So in the Customs Code “private vehicles” are defined as “vehicles for personal use”, and therefore the question arises as to what term to apply?
Part 3 of Article 1 of the Customs Code of Ukraine from 13.03.2012 No. 4495-VI tells us that if an international treaty of Ukraine, the consent to be bound by the Verkhovna Rada of Ukraine, establishes other rules than those provided for by this Code and other laws of Ukraine, apply Rules of the international treaty of Ukraine. Therefore, we come to the conclusion that it is necessary to apply terms and concepts of guidance in the Convention.
In Art. 5 Ch. ІІІ p. C of the Convention on Temporary Import states that private vehicles must be registered on the territory, is not a territory for temporary importation, in the name of the person, or residing outside the territory of temporary admission, and be imported and used by persons who permanently reside in the territory Such territory. From the content of this rule, one can make a categorical conclusion that a citizen of Ukraine does not have the right to use a car given to him by a foreigner. However, Article 7 of Ch. ІІІ p. From this Convention it says about the following: “Private vehicles can be used by third parties that have the appropriate permission of the user of the right of temporary admission. Each Party may allow such use by a person permanently residing in its territory, especially if it uses its name and in accordance with the user’s instructions the right of temporary admission. “
It follows that the owner-foreigner (the user of the right to temporary import) having written out the power of attorney for the car to a citizen of Ukraine, having issued him a technical passport, authorizes the latter to use the car on his own behalf for one year.
However, in the courts of Ukraine there are more and more cases of bringing to justice those guilty of violating customs rules revealed as a result of the customs check on the information provided by police officers.
What violations can actually be incriminated to users of foreign vehicles when importing the latter for private use of personal use?
First of all, they talk about exceeding the time limit for temporary importation or temporary removal of a vehicle (Article 481 of the Customs Code of Ukraine, a warning or a fine of 850 to 17000 UAH). Some believe that you can pay once a fine and then ride a lifetime, because according to Art. 61 of the Constitution of Ukraine no one can be twice brought to legal responsibility of one kind for the same offense.
But the judicial practice of Ukraine already now indicates that other norms, for example, Part 2 of Art. 469 or art. 485 of the Customs Code of Ukraine.
As for Part 2 of Art. 469 of the Customs Code of Ukraine, it provides for liability for unlawful operations with goods whose customs clearance has not been completed, or with goods that are temporarily stored under customs control, including the use or disposition of them without the permission of the revenue and fee body, entails a fine of up to 17000 UAH. However, in the Decision of the Constitutional Court of Ukraine No. 1-rp / 2015 of March 31, 2015r. The latter gave the interpretation, use or disposition of vehicles of personal use that are placed in the customs regime of temporary importation into the customs territory of Ukraine, is not an administrative offense under Part 2 of Art. 469 TC of Ukraine. Including, because the regime of temporary importation is not indicated at all in the disposition of this legal norm. Therefore, at the moment, Part 2 of Art. 469 TC can not be applied to violators of the temporary import regime. But this does not mean that they are not at all responsible.
Analysis of Article 485 of the Customs Code of Ukraine shows that for actions aimed at unlawful exemption from payment of customs payments or reduction in their amount, as well as other illegal actions aimed at evading payment of customs payments, a fine of 300% of unpaid payments , Which include duty, excise tax and value added tax. The total amount of payments in any case will be very significant and will repeatedly exceed the cost of the car. At the moment, in the practice of the courts, there are already cases of attracting users of non-customs cars imported under the regime of temporary import and transferred to other persons under this article (for example, the decision of the Odessa Administrative Court of Appeal of 22.06.2016 in case No. 521/186/16-a ), And the amount of fines is hundreds of thousands of hryvnia.
However, as a result of the payment of fines in the specified amount, no one clears the car, but only bears responsibility for the committed offense, since under Part 2 of Art. 464 of the Customs Code of Ukraine, payment of a fine, if the punishment in the form of confiscation of vehicles specified in paragraph 3 of Article 461 of the Customs Code of Ukraine is not applied, does not release the person who committed the violation of customs rules from payment of customs payments, except as provided for by this Code. To clear the car, you will have to pay 100% (that is, only 400% of the cost of taxes and fees), and remember that you can import cars into Ukraine only if it meets the Euro-5 standard. Otherwise, a person will not be able to register it and receive state numbers even after payment of all customs duties.
Also mention should be made of criminal liability. Article 212 of the Criminal Code of Ukraine – evasion from payment of taxes, fees (mandatory payments) is most likely to be applied automatically if the total amount of unpaid customs clearance payments reaches the levels specified in this article (then There are from 800 thousand UAH.). There will be an “automatic” initiation of criminal proceedings based on the results of the delivery of protocols on the violation of customs regulations or acts of documentary in-country unplanned inspections about non-payment of tax and import duty for cars that violated the conditions of transit or temporary importation.
Method 3. The official registration of a car abroad for a citizen of Ukraine, who is an employee of a foreign company. Thus, he acquires the right to use a vehicle in Ukraine without necessarily crossing the state border within one year.
At the same time, everything looks like this, that you, as an employee of the relevant foreign company, are moving to Ukraine, officially being on a long trip. Also, such a citizen should take into account that every crossing of the border will be accompanied by the need to issue a visa with the previous extension of the term of the employment contract (contract) and the renewal of the power of attorney with the company owner of the car.
It should also be remembered that by “acquiring” a car in this way, you do not become its rightful owner, but only receive the right of temporary use, and therefore you will not be able to sell it either (a foreign company is the legal owner of such a car).
As noted in the previous method, and in this case, Article 7 of Chapter 3 of Annex C of the Convention gives the right to a citizen of Ukraine, as an employee of a foreign company, to use the vehicle concerned, but only if the citizen has the right to use the right of temporary importation and carry out his activities In favor and in accordance with the instructions of the user of the right of temporary importation, that is, the relevant company.
Therefore, when a relevant labor contract (contract) is concluded by a citizen of Ukraine with a foreign company, it is necessary to take into account and prescribe in the terms of the contract the relevant provisions on the order of labor relations between the citizen and the company, and depending on the type of vehicle, in what form it will be implemented Use (commercial or private).
Also, the legislation of most countries determines the obligation to pay taxes from company employees and vehicles registered to the relevant company (for example, in Poland are mandatory: tax on individuals, VAT, vehicle tax and others).
Therefore, you should be careful not to face serious problems and not get into a situation where the company-owner of the car can “accidentally” disappear and not pay taxes.
Your employment should be in accordance with the norms of the labor legislation of the country in question, and the activity of the car owner company should not have any signs of fictitiousness, since for this in most foreign countries liability is foreseen.
Unfortunately, at the moment the available first calls from Lithuania about lawyers are scams who become owners of such companies with a large number of our countrymen seconded to Ukraine in Lithuanian numbers. In the future, lawyers who actually become owners of such cars Require pseudo workers to pay back the amount. Unfortunately, the law is on their side. Therefore, we advise, if and get involved in a similar story, it is not only in the role of a worker of such a firm, but also the sole owner or co-owner with other Ukrainian citizens.
The variant with the registration of a foreign firm by a citizen of Ukraine depends on the domestic legislation of the country of registration. Choosing this way, you completely protect yourself from unpleasant situations with the fact that someone suddenly “throws you”, since in this case you are fully responsible for the activities of your company and thus the duty to pay taxes completely falls on your shoulders. In addition, to ensure that the work of your company does not have any signs of fictitiousness, you must really engage in certain activities.
The cost of registering your own company (for example in Poland) by a Ukrainian citizen may be different and depends on whether you yourself carry out the registration procedure or join the support of a professional lawyer (law firm). If this is the second option, then the average cost of this kind of services on the market is about 800 euros.
The most common legal form that is chosen when registering is the Private Entrepreneur or LLC (Limited Liability Company). The size of the authorized capital depends on the choice of form (for the LLC in Poland it is 5000 PLN, that is, about 1200 EUR), as well as the cost of notary services that will register. For example, in order to register an LLC in Slovakia, it will be necessary to bring in the authorized capital of not less than 5000 euros and there are restrictions on the person – the director of the company. After all, they can only be a citizen of Slovakia or of our state after obtaining a permit for temporary residence.
In addition, it is necessary to take into account the costs that are incurred during the activity (taxes, accounting services, mailing address, etc.). The choice of this method for movement on non-cleared cars, can be economically unprofitable, so it should be taken into account.
Summarizing, the content of the article, we note that these are the main existing ways of moving by car on foreign numbers through the territory of Ukraine. Of course, the options how to save yourself from excessive expenses and not perform customs clearance procedures can be more and everything depends on the ingenuity and legal “savvy” of citizens who want to drive a foreign car. However, it should be remembered that sanctions in the Ukrainian legislation for violation of customs regulations are also enough. Firmly convinced that society does not need to come up with schemes to bypass requirements for customs clearance – society needs to demand simplification and cheaper customs clearance procedures.