CUSTOMS COLLECTION - GUARANTEES FOR OPERATIVE CUSTOMS

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GUARANTEES FOR OPERATIVE CUSTOMS

GENERAL REGULATIONS

  1. The methods of guarantee are the following:
    1. Letter of Guarantee issued by the National Financial System
    2. Bailbond Policy
    3. Negotiable Letter of Credit
    4. Certificate of Tax Compensation
    5. Warrant
    6. Pledge
    7. Mortgage
    8. Bank Certificate
    9. Debit Note
    10. Nominal Guarantee
    11. Letter of Commitment for Good Taxpayers in Temporary Admission
    12. Personal Guarantee (Special Installments Payment System)
    13. Bond posted in Cash ( Regulations on Baggage and Household Goods) 
    14. Guarantees in Cash (Art. 13º of WTO Accord)
  1. The Guarantee must be issued to the order of the National Customs Superintendency, on letterhead paper of the institution providing the guarantee, and must include the characteristics of solidary, irrevocable, indivisible and immediate,and when applicable, without benefit of liquidation.  

  2. CUSTOMS accepts a global guarantee as bond on clearances within the same customs system, by those who habitually use those particular systems.  A habitual user is one who uses a particular customs system at least five (05) times within a one-year period. In order to control the use of these guarantees, a Current Account will be opened by the corresponding customs area with all the pertinent details. 

  3. CUSTOMS accepts Debit Notes when the clearances are made by Good Taxpayers in the Temporary Admission System or in the cases established by law. 

  4. Cash Bonds presented by non-resident travelers on arrival in the country at International Airports, must comply with the specific procedures on Payments - Extinction of Debts (INRA-PE.08).

    5. The reception, custody, reimbursement and control of Cash Guarantees is subject to the norms set out in the Specific Procedure INRA-PE.16 Reception and Reimbursement of Guarantees in Cash / Art. 13º ofthe WTO Accord. 

  5. For the acceptance, control and custody, renewal, exchange, reimbursement and execution of Negotiable Credit Notes and Certificates of Tax Compensation, authorized personnel must comply with the Specific Procedures for Valued Documents (INRA-PE.09). 

  6. Third parties may grant guarantees in favor of the principal debtor, which must be indicated on the same document. If the third party were to refuse to continue guaranteeing the principal debtor, the guarantee may only be returned if the principal debtor exchanges the guarantee or renews the current one. 

  7. Personnel in charge of CUSTOMS must not accept guarantees that do not meet with the requirements indicated in the current procedure. 

  8. The user must present his requests for acceptance and return of guarantees to the Documentary Process Areas of the Customs Intendencies, with the exception of those concerning the Customs Systems and Operations, in which case they will abide by the regulations for each of those operation procedures. 

    9. For the request to be accepted, the user must attach to his request a copy of the guarantee for presentation to the corresponding Area. Once the request is admitted, the user presents the original of the guarantee to the corresponding Area. For the return of documents, no request is required if the authority indicates it so. Equally, timely renovation of guarantees does not require the presentation of a request. 

    The lifting of the term to renew guarantees goes into the effect the moment the user requests a public or private institution to issue the guarantee before the deadline required by Customs, until the guarantee is placed at his disposal to meet his obligations. 

  9. The National Customs Collection Intendency –INRA- with prior coordination with the Customs Operative Intendencies, informs those intendencies when a guarantee is not accepted because the issuing institution is known to not honor its guarantees. 

  10. The heads of the areas involved in the execution of this procedure, through the Customs Intendencies, are responsible for supervising the entry and updating of information in the Bond Control Module of SIGAD. 

A) ACEPTANCE OF GUARANTEE

    1. The user presents the original, valid guarantee to the corresponding area, be this the area of the definitive, suspended, temporary or perfeccionamiento activo area, or special or collecting customs offices.  

    2. The reception and verification that the guarantee meets the requirements of the specific customs system, operation, installments, extemporaneous claims or appeals or court-administrative claims, as well as the requirements indicated in clause 2 of VI General Regulations, and specific requirements pertaining to each guarantee, are carried out by personnel in the Area where the tariff duties payable were generated, or in the Collection Area of Customs Intendencies other than those of the Callao Airport and Maritime Intendencies, according to the standard, current procedures and regulations.  

    3. Guarantees presented in the Drawback customs system must be presented to the Collection Area of the Callao Maritime and/or Airport Customs Intendencies, according to the procedure regulations stipulated in DRAWBACK (INTA-PG.07).

    4. Letters of Credit presented with claims or appeals on expired clearances, or on court-administrative claims for duties payable generated by the National Intendency of Customs Supervision, are received and verified by authorized personnel of the Collection Control Division of the National Customs Collection Intendency.  

    5. The reception and verification of the Letter of Credit presented to replace a caution measure during the temporary lifting of a judicial procedure is the responsibility of the Collection Area. 

    6. The Customs Intendencies are authorized to accept Nominal Guarantees from institutions that are of bonafide moral solvency and prestige, according to Art. 26 of Legislative Decree Nº 809, General Customs Law.

    7. If the requirements are not met, the authorized officer in charge of receiving the documents does not accept the guarantee. 

    8. If the guarantee is accepted, authorized personnel ensures that the accurate data on the guarantee is entered in the Bond Control Module. 

    9. The Area Chief, in the Customs Intendencies in Metropolitan Lima, carries out a random check of guarantee-issuing institutions equivalent to 15% of the Letters of Credit, Bond Policies or Bank Certificates in Foreign Exchange accepted during the previous calendar month, to confirm their authenticity. 

At Customs offices in the provinces of the country, confirmation on 100% of the accepted guarantees is made, with each Customs Intendency requesting confirmation from the issuing institutions. 

Guarantees must meet the following requirements:

A1) LETTER OF CREDIT:
    1. Must be issued by a banking or financial institution duly authorized by the Banking and Insurance Superintendency. 
    2. Names and surnames, name of company or address of person guaranteed. 
    3. Number and date of issue.
    4. Granted in favor of the National Customs Superinendency, and indicating expressly the debts/obligations it guarantees. 
    5. Amount that is guaranteed, given in United States Dollars. Guarantees in national currency are only accepted when the debt/obligation the guarantee covers what was generated in that currency. 
    6. Signed by authorized officers and countersigned by a seal or security mark of the issuing institution. 
    7. Date of expiry, specifying hour, day, month and year, adding data as per article Nº1898 of the Civil Code, and the place it must be requested. 
    8. Must not include any kind of corrections, erasures or crossings out. 
    9. When a Letter of Credit is presented as a requirement for admittance of an expired claim or appeal, or a court-administrative claim, the guarantee must cover the amount of the tax debt calculated at the rate for up to six (6) months after the date the claims or appeal is filed; the guarantee must be for a period of six (6) months. 
    10. If an Objection of Duties is presented, the Letter of Credit must be for a period not less than three (03) months. 
    11. In the event the claim filed is for difference of value according to the WTC's Accord on Reasonable Doubt or Provisional Value, the guarantee must be valid for a period not less than forty (40) working days from the date the WTO Guarantee Deposit Order is issued. 

A2) BAILBOND POLICY

    1. The acceptance of a bailbond policy, issued by an insurance company duly authorized by the Banking and Insurance Superintendency, is based on the same requirements as per numbers  2), 3), 4), 5), 6), 7) and 8) that refer to Letters of Credit. 

A3) WARRANT
  1. Requirements for the acceptance of a Warrant are as follows:
  1. It must be endorsed to the National Customs Superintendency, if applicable.
  2. Name and address of depositor.
  3. Date of issue.
  4. Description of the goods, quantity, weight, quality and state, class and mark of the bundles and any other indications that service to identify the articles and their value. 
  5. Must indicate that the goods are stored in the depositor's own warehouse. 
  6. Must be correctly completed and signed by the endorser and storage company. 
  7. Date of expiry, specifying hour, day, month and year. 
  8. Document must not include any form of corrections, erasures or other crossings out. 
  9. The value of the good or goods offered as warrant must exceed by 50% (fifty percent) the value of the debt being guaranteed. 
  10. Insurance Policy endorsed to the National Customs Superintendency that covers the goods placed as guarantee against all types of risk. 
    1. Once the requirements are verified as per the above clause, authorized personnel channel the warrant to the Head of the Legal Advisory Area or other person responsible, who approves the warrant if correct and channels it to the Customs Intendency which is then registered as endorsee, representing the National Customs Superintendency.  

A4) PLEDGE
  1. The requirements to accept a pledge guarantee are as follows: 
  1. Presentation of the legally binding, original pledge contract, according to the Module included in Annex 1 of this procedure.  
  2. The value of the good or goods offered as pledge, owned by the debtor or third parties, must exceed by 50% the amount of the debt that is guaranteed. For Temporary Admission and Import systems, the value must be equivalent to the suspended tariff duties.  
  3. An Insurance Policy must be presented, endorsed to the National Customs Superintendency, on the goods pledged and against all risks.

    4. The Insurance Policy will not be necessary when the companies provide satisfactory proof that they can substitute the pledge in the case of loss or damage of the pledged good (in temporary admission and import systems), and if this occurs, the companies must inform the Customs Intendency of any event that could affect the availability or status of the replacing goods.  
  4. Goods offered as pledge must be valued by a professional registered with the Technical Valuation Corps of Peru, or in the National Valuation Council. In the case of Customs Intendencies in the provinces, the evaluator may be a professional registered with the College of Engineers or Architects.  
  5. Documents that prove the ownership of the pledge must be presented: 

- In the case of nationalized goods: Import Declaration and duly paid Assessment of Duties Payable; 

- In the case of national goods: Commercial Invoice, Sales Contract or other documents.  

    1. Present documentary proof that the goods pledged are not subject to any court charges or taxes or any other charges that would limit or restrict the availability of property rights over it. 
    2. In the case that loss or damage of the pledged good would render the pledge to be insufficient to cover the debt, the user is obligated to substitute the pledged good within fifteen (15) working days from the date of notification. 
    1. Goods not accepted as pledge guarantee:
    1. Nationalized goods whose tariff duties were approved in the installament system and have not yet been fully paid.  
    2. Goods already being pledged in favor of third parties. 
    3. Perishable goods.
    4. Share or stock Certificates.

    1. Once the above requirements have been met, the authorized personnel channel the pledge contract to the Chief or other authorized person of the Legal Advisory Area for approval and subsequent channeling to the Customs Intendency for signature.  

  1. The pledge contract signed with notarized signatures, by the Customs Intendency, the accredited legal representative and the pledgers must be registered in the Public Registry by the debtor or the beneficiary, as applicable. 

  2. Once the pledge contract is registered, the debtor or beneficiary presents the contract to the Area which is handling the customs operation or system, for registration and control. 

A5) MORTGAGE
  1. In order to sign a Mortgage contract with CUSTOMS, the interested party uses the Module included in Annex 2 of the current procedure, and this document is registered in the Public Registry. The contract must include the following: 
  1. The value of the goods or real estate offered as a guarantee, owned by the debtor or third parties, must exceed by 50% (fifty percent) the amount of the debt to be guaranteed, or part of it when other guarantees are also offered.  
  2. The mortgage cannot be subject to any conditions or set periods. 
  3. A current valuation of the real estate property, made according to the legally binding mortgage contract.  
  4. It is obligatory to present the title deed of the property to be mortgaged and a literal copy of the real estate Registry card issued by SUNARP, the property regulatory body. 

  1. Once verification has been made that the aforementioned requirements have been met, authorized personnel receiving the Mortgage contract proceed with the process to subscribe the pledge contract and conclude with the registration in the Public Registry. 

A6) BANK CERTIFICATE IN FOREIGN CURRENCY
    1. Must be issued to the bearer and given to CUSTOMS.
    2. Must be duly signed and registered by the issuing banking institution. 
    3. Must be issued for an amount no less than US$1000 (one thousand U.S. Dollars). 

A7) PROMISSORY NOTE
  1. For clearances by Good Taxpayers in Temporary Admission:
  1. The Note must be completed and signed by the titular party or legal representative, according to the format annexed to the Specific Procedures for Good Taxpayers (INRA-PE.07).  
  2. Must have the endorsement of two (02) partners in the company in the case of a business. 
  3. The legal representative, in the case of a business, must present a copy of the Mercantile Registry card that indicates the power of attorney granted to him. 
  4. Must be expressed in U.S. Dollars. 
    1. In the case of Payment by Installments, Leg. Decree. Nº 818:
    1. It is generated through the Collection Module - Cashier's Office.
    2. Must be signed by the person with power of attorney registered in the Mercantile Registry. 
    3. Must be made for the balance pending of the debt in installments. 

A8) NOMINAL GUARANTEE

    1. Name or company name of institution providing the guarantee. 
    2. Name and surnames, name of the institution being guaranteed. 
    3. RUC (Tax Registry No.) and Address of institution providing guarantee.  
    4. Names and surnames of the officer(s) with power of attorney for the sponsoring institution, duly accredited.  
    5. Number of National Identity Document (DNI), or Foreign Resident Carnet, Passport, or Identity Card, and signature of the person(s) with power of attorney. 
    6. Amount of the Guarantee in U.S. Dollars, in writing and in numerals. 
    7. Date of issue of guarantee. 
    8. Date of expiry of guarantee. 
    9. The document must stipulate the customs operation or system being guaranteed, and the number of the corresponding Declaration.  
    10. Must have complied with regularization of expired Nominal Guarantees. 

A9) LETTER OF COMMITMENT FOR GOOD TAXPAYERS IN TEMPORARY ADMISSION SYSTEM 
    1. Must be correctly completed and signed by legal representative of the comapny using the format annexed to Specific Procedures for Good Taxpayers (INRA-PE.07). 
    2. Must indicate the category granted and the number and date of the Resolution given by the Customs Collection Intendency that gave the qualification of Good Taxpayer. 
    3. Must expressly indicate the number and date of the Promissory Note that the letter offers to honor. 

A10) GUARANTEE IN CASH
    1. The total must be deposited in cash or in a banker's check or certified check in the Authorized Banking Institution. 
    2. The amount of the guarantee must be given in U.S. Dollars. 

B) RENEWAL
    1. Personnel in charge of custody and control may issue a reminder to the user 15 days prior to the expiry of the guarantee, if applicable. 
    2. The user presents the renewed, accredited guarantee to the correspondng CUSTOMS office, for the amount of the debt or for the balance pending at the date of renewal.
    3. In order to accept the guarantees presented for the renewal, authorized personnel must ensure that the same requirements are met as were done so previously for the first acceptance. 
    4. When letters of credit are presented with a refutation claim beyond the deadline, these letters must be renewed every six (6) months for the total amount of the tax debt accrued over a period of six months beyond the renewal date.  
    5. In the event of transfer of goods from one beneficiary to another, the latter is under obligation to renew the guarantee except when the transfer is made without the responsibility of Temporary Admission. 
    6. If the guarantee is renewed, personnel in charge proceeds to take custody and control of the new guarantee, and registers the renewal with the Bond Control Module. 
    7. In the event that the user cannot immediately present the letter of credit, caution policy or banking certificate in foreign currency, he must present a request to the Documentary Process Area with a copy of the document of proof that the renewal procedure has been initiated with the bank, financial or insurance institution (before the date of expiry).  

C) RETURN OF GUARANTEE

    1. Once a request is presented, personnel in charge of the custody and control return the guarantee to the constituent, Customs Agent or duly identified legal representative, in the case of regularizing a system, renewal of guarantee, payment of the debt or the issue of a favorable Resolution, as applicable, and register the retrieval of the guarantee in the Bond Control Module. 
    2. Authorized personnel register the return of the guarantee and select the Physical Retrieval option in the Bond Control Module. 
    3. If the interested party has not retrieved the guarantee within thirty (30) working days after presenting the request, the Head of the Area may either file the document or send it back to the issuing institution. 
    4. If duties or taxes that originated the guarantee have been met according to regulations, the Customs Intendent will authorize the removal of the guarantee from the Public Registry by using the format for the Lifting of Guarantee Contract, included in Annex 3 of this procedure. 

D) EXCHANGE 

  1. The user may exchange the initial guarantee, within its valid date, in the following circumstances, among others: 

    1. Change of name or company of the entity being guaranteed. 
    2. To present a guarantee for an amount larger or smaller than the original. 
    3. Change of guarantor (banking, financial or insurance institution). 

  1. The user presents the original of the new guarantee to the personnel in charge of the Area's custody and control section and who, following verification,receives the guarantee and registers the data in the Bond Control Module, to then return the previous guarantee.  

F) EXECUTION
    1. CUSTOMS executes the guarantee when the a final unfavorable resolution is issued or when the legal order to execute has been verified. 
    2. Within the three (03) days following payment by the execution of the guarantee, the Head of the Area notifies the debtor with a copy of the Assessment of Duties Payable Notice marked as paid; if the guarantee does not cover the total of the debt, the debtor is notified of the balance pending. 
    3. The procedure for execution of guarantees is as follows: 

F1) LETTER OF CREDIT OR BAILBOND POLICY
    1. Personnel in charge of custody and control must coordinate with the corresponding area on the total amount to be paid and then prepares the request document which is duly signed by the Area Head and sent via Notary Public or the Court to the institution that issued the guarantee within 15 calendar days following the expiry of the guarantee. 
    2. When the guarantees to be executed were issued in customs jurisdictions other than the Customs Intendency that is requesting the execution, these Intendencies can initiate the execution directly with the institution in this locality that rendered the guarantee as legal. 
    3. The Customs Intendencies in the provinces of the country which hold guarantees issued in Metropolitan Lima, will need the National Customs Collection Intendency to carry out the procedure and thus the provincial Customs Intendency will send the execution orders by the speediest mode possible. 
    4. The Banking, Financial or Insurance institution honors the garantee by issuing a check to the name of the National Customs Superintendency (Superintendencia Nacional de Aduanas), drawn in local currency at the day's sale rate of exchange as published by the Banking and Insurance Superintendency. 
    5. Within twenty-four (24) hours that the banker's check has been received, Customs personnel issues the corresponding Assessment of Duties Payable and marks as paid the debt in the collecting banks. 

F2) WARRANT
    1. If the warrant expires and the legal basis for its execution has been verified, Customs personnel in charge of its custody and control proceed to issue the notarized protest within the eight (08) calendar days following its expiration date. 
    2. Two (02) days after the protest has been filed, the Area Head requests the administrator of the General Warehouse to sell the stored goods, and attaches the warrant and the protest writ. 
    3. Personnel in charge of the Warehouse submit the goods for auction by a Public Auctioneer and a representative of the Customs Intendency that requested the sale. 
    4. Once the goods have been sold, personnel in charge of the Warehouse places the monies generated at the disposal of CUSTOMS for payment of the debt as per the Assessment for Duties Payable, previously discounting the duties, storage and insurance costs owed to the warehouse as well as the auctioneer's commission and any other expenses incurred in the sale. 

F3) PLEDGE OR MORTGAGE
    1. The execution of these guarantees is the responsibility of the Coaction Executor, as per the request of the Area Head that requested the execution and must send the Pledge or Mortgage deed. 
    2. The value of the good is that presented by the beneficiary. 
    3. The execution procedure cannot be suspended by any action that the beneficiary may file to impede the procedure. 
    4. The Coaction Officer calls an auction, which is to be held according to the General Procedure "Regulations on Forced Collections" and to any norms in the Civil Court Code that may be applicable.   
    5. The amount obtained in the auction is used to pay the debt through the Assessment of Duties Payable. 
    6. Within three (03) days following the payment of the debt, the Area Head notifies the taxpayer of the execution, attaching a copy of Assessment of Duties Payable marked as paid. 
    7. The Coaction Executor registers the lifting of the guarantee from the Public Registry once the auction has concluded. 

F4) BANK CERTIFICATE IN FOREIGN CURRENCY
    1. CUSTOMS proceeds to collect on the certificate by requesting the procedure to the issuing bank, requesting a check be made out to the National Customs Superintendency (Superintendencia Nacional de Aduanas) for the amount of the Certificate and interest incurred up to the date of execution.  
    2. Within twenty-four (24) hours of receiving the banker's check, the authorized Customs personnel issues the corresponding Assessment of Duties Payable pays the debt in the collecting banks. 
    3. The payment of the principal and interest is made in local currency at the exchange rate published by the Banking and Insurance Superintendency on the date of payment.  

F5) PROMISSORY NOTE
    1. If the user does not comply with the obligations of the promissory note, CUSTOMS proceeds to protest the note before a Notary Public within the eight (08) calendar days followng the expiry date.
    2. Personnel in charge of custody and control notifies the debtor of the Document of Determination and Assessment of Duties Payable (unless the debt had been informed already of the Document of Determination), and grants an unextendable period of ten (10) days in which to pay the guaranteed debt.  
    3. If the period expires and the debt has not been paid nor has an appeal been filed, the Area Head who issued the Document of Determination or the Head of the Documentary Process Area, whichever is applicable, sends the documentation to the Coaction Executor to begin collection proceedings and issue the corresponding Payment slip once the debt is paid. 
    4. Without affecting the forced collection, personnel in charge of custody and control process the protest writ and original promissory note to the Public Prosecutor of CUSTOMS for judicial collection process.   
    5. Once the judicial collection process is concluded, the Public Prosecutor places the amount collected at the disposal of the Area that accepted the promissory note, for payment of the debt via an Assessment of Duties Payable.

F6) NOMINAL GUARANTEE
    1. The personnel in charge of the Area that accepted the nominal guarantee initiates the execution process via notification of the Document of Determination and the corresponding Assessment of Duties Payable (unless the Document of Determination has already been sent earlier), and grants an unextendable period of ten (10) days to the debtor to pay the guaranteed debt.  
    2. If payment of the debt has not been made when the period expires, personnel in charge of collecting the nominal guarantee advise the Customs Clearance Intendency, without affecting the start of the forced collection process.  

    3. The Customs Intendent has the discretionary right to refuse acceptance of other nominal guarantees from the same company, which would thus be required to present banking or financial institution letters of credit. Once the debt is paid, the Customs Intendent is to lift the restriction.

       

The Annexes and other procedures to be followed for Operative Customs Guarantees can be found in Specific Procedures INRA-PE.06, published in the official gazette El Peruano on 18.SEPT.1999.